Com. v. Cooper

• Decision Date: 16 February 1995
• Docket Number: Nos. 93-SC-618-D,93-SC-1021-DG,s. 93-SC-618-D
• Citation: 899 S.W.2d 75
• Parties: COMMONWEALTH of Kentucky, Appellant/Cross-Appellee, v. Robert Edward COOPER, Appellee/Cross-Appellant.
• Court: United States State Supreme Court — District of Kentucky

Page 75

899 S.W.2d 75

COMMONWEALTH of Kentucky, Appellant/Cross-Appellee, v. Robert Edward COOPER, Appellee/Cross-Appellant.

Nos. 93-SC-618-DG, 93-SC-1021-DG.

Supreme Court of Kentucky.

Feb. 16, 1995.

Rehearing Denied June 8, 1995.

Chris Gorman, Atty. Gen., Frankfort, C. Lloyd Vest, II, Sp. Asst. Atty. Gen., Louisville, for Commonwealth.

Harry B. O'Donnell, IV, Thomas E. Schwietz, Louisville, for Cooper.

LAMBERT, Justice.

The question before the Court is whether Section Eleven of the Constitution of Kentucky or a viable doctrine of the common law requires suppression of a confession coerced or improperly obtained by private parties. Prevailing decisional law answers firmly in the negative (Peek v. Commonwealth, Ky., 415 S.W.2d 854 (1967)), and is in accord with controlling precedent interpreting the Constitution of the United States. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). ¹ Despite the foregoing the trial court held that Section Eleven of the Constitution of Kentucky was without any requirement of state action, thereby subjecting incriminating statements made to purely private persons to a "compelled ... evidence" analysis. The Court of Appeals disclaimed reliance on either federal or state constitutional law, but relied on "an ancient doctrine conceived in the common law...." that confessions obtained by coercive techniques, whether by state or private actors, were involuntary and inadmissible in criminal prosecutions. We granted discretionary review and now reverse the courts below.

The facts, as found by the trial court and relied upon by the Court of Appeals, are substantially as follows. While employed by United Parcel Service in Louisville, appellee Robert Edward Cooper was observed standing over two parcels, one of which was open. On questioning by his supervisor, appellee soon confessed to having opened the parcel. On further questioning, he admitted having committed other UPS thefts and provided tangible evidence which confirmed his oral and written confessions. However, in the course of the interrogation, UPS personnel assumed the role of authority figures and asserted control over appellee. He felt significantly intimidated by virtue of being questioned for something over one hour in a windowless room which had a motion detector and closed, possibly locked, doors. Moreover, UPS personnel expressly or impliedly promised appellee that in exchange for his cooperation, he would not be prosecuted.

On the other hand, there was no evidence of violence or threat of violence against appellee. He was not physically prevented from leaving the scene and was urged only to tell the truth. The only police officer present was appellee, a military policeman with the Kentucky National Guard, and he testified to being familiar with police procedures.

Upon the foregoing evidence, the trial court ordered suppression of appellee's statements and on the Commonwealth's interlocutory appeal, pursuant to KRS 22A.010, the Court of Appeals affirmed. Both courts below acknowledged the absence of grounds for suppression pursuant to the Constitution of the United States, but interpreted Kentucky law more broadly than corresponding federal constitutional rights. Holding that state action is not required to trigger a right to seek suppression under state law, the Court of Appeals stated:

It matters not whether undesired results, like involuntary confessions, emanate from the badge of authority or from an ordinary citizen cloaked with actual or perceived superiority. In the eyes of the law of this Commonwealth, the consequence is no less odious. (Slip op., p. 5).

Contrary to the view of the courts below, the decisions of this Court are virtually unanimous that "state action" is required before any claim of suppression on grounds of compelled testimony will be entertained. Such was the direct holding in Peek v. Commonwealth, supra, in which a bail bondsman refused to file a bond until a defendant in custody made what amounted to a confession. Despite the existence of circumstances which might have suggested state action, the Court said:

The State is not, and should not be, charged with any undue influence, pressure, sweating, or inducement exercised by a private citizen, acting on his own, not in concert with the officers of the State.

Id. at 856. Similarly, in Hood v. Commonwealth, Ky., 448 S.W.2d 388 (1969), in which the appellant contended that he should have been given all the warnings and admonitions set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court held that Miranda rights do not apply to a citizen arrest.

The thrust of Miranda relates to actions of law enforcement agencies, and not to the actions of private citizens. We have no hesitancy in holding that Miranda does not apply in the instant case.

Hood, at 391. Likewise Jaggers v. Commonwealth, Ky., 439 S.W.2d 580 (1969), held that statements made to a person other than a "law enforcement official" were not subject to Miranda protection.

These statements were not made to any law enforcement officer, nor were they made when appellant was under arrest.

Id. at 584.

It should be observed that Hood and Jaggers and a great many other Kentucky decisions addressing the right against self-incrimination were rendered in the era shortly after Miranda v. Arizona. In Kentucky and throughout this nation, Miranda represented a change in the law of seismic proportions and the rights it acknowledged went far beyond those which were recognized under the Constitution of Kentucky. Thus the phrase "Miranda rights" became virtually synonymous with the most conceivably far-reaching rights against self-incrimination. Disdainfully, the Court knuckled under in Meyer v. Commonwealth, Ky., 472 S.W.2d 479 (1971) (overruled on other grounds by Short v. Commonwealth, Ky., 519 S.W.2d 828 (1975)), as follows:

The word "compelled" contemplates the use of "sweating" or other means of coercing a citizen to incriminate himself. Nowhere in any constitution, either Federal or state, is a requirement that officers charged with the investigation of a crime must enlighten the suspect of his rights against self-incrimination. But Miranda does just that, and until it is overruled we must try to live with it.

While the foregoing decisions did not directly address Kentucky constitutional law, it appears to have been implicit that there were no greater protections than federal constitutional protections or that state constitutional rights were no more than coextensive with federal rights. In fact, the Court said just that in Newman v. Stinson, Ky., 489 S.W.2d 826 (1972):

The Fifth Amendment right against self-incrimination and the right given by Section Eleven of the Kentucky Constitution both arise from a common historical desire to prohibit the employment of legal process to extract from a person's own lips an admission of guilt which would thus take the place of other evidence. 8 Wigmore, Evidence (McNaughton Revision 1961), Section 2263. That the guarantees against self-incrimination of both the Federal and State Constitutions should have the same interpretation as far as possible despite some variance of wording is supported by Wigmore, 8 Wigmore, Evidence, Sections 2252 and 2263, and is affirmed by Schmerber v. California, supra. We conclude therefore that the protection against self-incrimination given by the Fifth Amendment to the United States Constitution is identical with that afforded by Section Eleven of the Kentucky Constitution.

Id. at 829.

We recognize that Newman v. Stinson did not deal with testimonial confessions, but such was clearly within the Court's contemplation as shown by its discussion of the historical parallel between the Fifth Amendment to the Constitution of the United States and Section Eleven of the Constitution of Kentucky. Moreover, an interpretation that Section Eleven requires "state action" is strengthened by analogy to other rights of persons accused of criminal conduct. In Stone v. Commonwealth, Ky., 418 S.W.2d 646 (1967), the Court held that evidence obtained by private persons was not subject to exclusion under Section 10. Quoting from Chapman v. Commonwealth, 206 Ky. 439, 267 S.W. 181 (1924), the Court said:

It [Section 10] has never been held, however, to embrace or be applicable to a private individual who, through a process of spying or other form of trespass, discloses evidence against another.

Stone v. Commonwealth at 650. Similarly, in Wilson v. Commonwealth, Ky., 695 S.W.2d 854, 857 (1985), the Court held, though it failed to specify whether it was interpreting federal or state constitutional law, that

in order to establish that a pre-trial confrontation was unduly suggestive, the defendant must first show that the government's agents arranged the confrontation or took some action during the confrontation which singled out the defendant.

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 federal 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. (Citations omitted.)

Holbrook v. Knopf, Ky., 847 S.W.2d 52, 55 (1992).

Newman v. Stinson, supra, and our prior decisions are clear and we reiterate that Section Eleven of the Constitution of Kentucky and the Fifth Amendment...