Buster v. Commonwealth

• Decision Date: 26 April 2012
• Docket Number: Nos. 2011–SC–000002–MR, 2011–SC–000005–MR.,s. 2011–SC–000002–MR, 2011–SC–000005–MR.
• Parties: Patricia BUSTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and Patricia Buster, Appellant, v. Commonwealth of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

364 S.W.3d 157

Patricia BUSTER, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.andPatricia Buster, Appellant,

v.Commonwealth of Kentucky, Appellee.

Nos. 2011–SC–000002–MR, 2011–SC–000005–MR.

Supreme Court of Kentucky.

April 26, 2012.

Steven Jared Buck, Assistant Public Advocate, Department of Public Advocacy, Frankfort, K, Counsel for Appellant.

Jack Conway, Attorney General, Christian Kenneth Ray Miller, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice NOBLE.

Appellant Patricia Buster entered a conditional guilty plea to four counts of complicity to first-degree rape. Appellant's conditional guilty plea preserved her right to appeal the adverse ruling of the trial court on her motion to suppress her written confession. This Court finds that Appellant did not voluntarily waive her Miranda rights, and therefore the trial court's denial of the motion to suppress is reversed. Appellant's conviction is vacated and this case is remanded to the trial court so that the Appellant can withdraw her guilty plea.

I. Background

This case arose when a young woman reported to the police that Kenny Buster sexually abused and raped her when she was a child, and that Kenny's wife, Appellant, was present when it happened. Eventually, ten other victims of the Busters were identified through investigations by the police and the Cabinet for Health and Family Services. The evidence against Appellant was not fully developed in the record because the case was cut short by Appellant's conditional guilty plea. As relevant to this appeal, the underlying allegations are as follows: Appellant and Kenny abused children they babysat at their house in the 1990s and early 2000s. The victims, who were mostly young girls under the age of twelve at the time, were raped and sexually abused by Kenny while Appellant was present. Appellant also participated directly in some of the sexual abuse; several victims said that Appellant had touched their vaginas with her fingers. The victims started to come forward in the fall of 2009.

Appellant is mentally retarded. One expert found that she obtained a Full Scale IQ score of 65, which placed her in the “extremely low” range. Another expert found that she had “significantly substandard intelligence” and that she functioned at the level of a nine- or ten-year-old child in the areas of abstract reasoning, written word recognition, and oral comprehension. Appellant had attended special education classes through the twelfth grade. At the time she was arrested, she was 40 years old.

The investigation in the fall of 2009 culminated in the arrest of Appellant by the Munfordville City Police on November 24, 2009. Once Appellant was brought to the police station, Police Chief Greg Atwell informed Appellant of her right to remain silent and her right to counsel, and she told him that she had nothing to say to him. Atwell stopped questioning her.

Benson Bell, a social worker for the Cabinet for Health and Family Services, had learned of the arrest and was on his way to the police station. Bell was apparently involved in investigating the allegations the Cabinet had received about the sex abuse, and he was working in cooperation with the police. He had interviewed Appellant twice in the weeks leading up to her arrest. At the second interview, Appellant had provided him a list of the victims, which he then turned over to the police with her knowledge. Bell believed that he had developed some rapport with Appellant through these interviews. However, Bell was not acting as an advocate or representative for Bell during this process; he was investigating allegations against her.

Atwell contacted Bell to let him know that it was unnecessary for him to come to the police station because Appellant was refusing to answer questions. Bell knew that Appellant did not like Atwell because of a previous criminal investigation, and so Bell asked Atwell to ask Appellant if she would be willing to speak to Bell. Atwell did so, and Appellant agreed, stating, “I will talk to Benson.”

Bell spoke privately with Appellant at the police station for about half an hour. There are no video or audio recordings of any of the interviews at the police station, so the facts described below are based on the testimony of Atwell and Bell at the suppression hearing. Bell described his private discussion with Appellant as a “good conversation.” Bell said that Appellant was upset and stressed at once again facing investigation about child sex abuse. She cried for about half the time he was with her. Bell said he told her that victims were continuing to come forward and that this could continue for the rest of Appellant's life as the victims got older, more verbal, and braver. Bell and Appellant talked about her wanting to get the past behind her and move forward with her life. Eventually, she said she wanted to give a statement to the police. Bell notified Atwell that Appellant was willing to talk.

Atwell returned to the interview room and again advised Appellant of her Miranda rights. Atwell gave her a waiver form titled “Statement of Rights,” which she signed. Atwell and Bell then questioned Appellant about specific victims. Atwell then asked Appellant to make a written statement on the police department's standard form. Appellant handwrote a six-page statement on these forms. Her statement lists the names of each victim and describes specific acts of sexual abuse that Appellant witnessed or performed herself.

In two indictments, Appellant was charged with a total of 16 counts of first-degree sex abuse, 341 counts of complicity to first-degree sex abuse, 19 counts of complicity to first-degree sodomy, 12 counts of first-degree rape, 33 counts of complicity to first-degree rape, and one count of first-degree unlawful imprisonment.

Appellant later filed a motion to suppress the November 24th written statement, claiming that she did not intelligentlyand knowingly waive her rights and that her confession was not voluntarily made. The trial court held a suppression hearing and denied the motion. Appellant entered a conditional guilty plea to four counts of complicity to first-degree rape under one indictment, and to first-degree rape, first-degree sodomy, and first-degree sexual abuse under the other. She was sentenced to twenty years' imprisonment. The plea preserved Appellant's right to appeal the adverse ruling of the trial court on the motion to suppress.

II. Analysis

Appellant argues that the trial court erred in denying the motion to suppress for multiple reasons: that the police improperly continued to question her after she invoked her right to remain silent; that she lacked the mental capacity to voluntarily, knowingly, and intelligently waive her Miranda rights; and that her confession was not voluntary because it was the result of coercive police activity, such as the police allegedly telling her what to write in her statement. This Court reverses the trial court under Appellant's first argument and therefore does not reach the remaining issues.

Appellant's first argument is that her waiver of her rights was involuntary because the police failed to respect her invocation of her right to silence. Specifically, Appellant argues that by re-approaching her and asking her if she wanted to speak to Bell, Atwell demonstrated to Appellant that her desire to remain silent would not be respected. And Appellant argues that the conversation with Bell had the effect of pressuring her to waive her right to remain silent.

A. Preservation of the Issue.

The Commonwealth objects to any review of this issue, arguing that it was not raised at the trial court. As an initial matter, the Commonwealth argues that this issue was not preserved by the conditional guilty plea. Under a conditional guilty plea, this Court may only review those issues that were specifically preserved in the guilty plea (as well as a few other types of issues, such as a claim that the indictment did not charge an offense, that are not relevant to this case). RCr 8.09; Dickerson v. Commonwealth, 278 S.W.3d 145, 149 (Ky.2009); Lovett v. Commonwealth, 103 S.W.3d 72, 84 (Ky.2003). Here, Appellant's guilty plea document preserved her right to appeal the “adverse ruling of the trial court on [her] motion to suppress.” This language logically includes any issue that was raised to and ruled on by the trial court on the suppression motion.

The Commonwealth argues that the sole issue raised to and ruled on by the trial court was whether Appellant's mental state rendered her waiver not knowing, intelligent, and voluntary. In other words, the Commonwealth argues, the trial court's decision was focused exclusively on the effect of Appellant's mental retardation on her confession.

This broad assertion is not accurate. Although much of the evidence presented at the suppression hearing related to Appellant's mental retardation, defense counsel also presented evidence and arguments about the allegedly coercive actions of Atwell and Bell. Specifically, defense counsel argued at the hearing that Bell's statements during his half-hour conversation with Appellant were coercive.

The defense counsel's oral argument to the trial court was brief—about four minutes long—and fairly general. She did not go into much detail about the relevant law, but she did present a basic outline of the claim now argued on appeal: that Bell's conversation with Appellant coerced her into making a statement to the police.

And the trial court addressed the question of coercion in its written judgment:

In obtaining this written confession, this Court finds that Atwell and/or Bell used none of the following tactics: (1) physical or mental coercion, (2) threats or promises, and (3) deceit or trickery. Instead, Buster explained that she was upset because she was once again facing another criminal investigation over sexual...