Cummings v. Com.

• Decision Date: 21 June 2007
• Docket Number: No. 2005-SC-000479-MR.,2005-SC-000479-MR.
• Citation: 226 S.W.3d 62
• Parties: Daniel Gene CUMMINGS, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

226 S.W.3d 62

Daniel Gene CUMMINGS, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2005-SC-000479-MR.

Supreme Court of Kentucky.

June 21, 2007.

Daniel T. Goyette, Louisville Metro Public Defender, Bruce P. Hackett, Deputy Appellate Defender, Louisville, Counsel for Appellant.

Gregory D. Stumbo, Attorney General of Kentucky, Frankfort, Jason Philip Snyder, Assistant Commonwealth Attorney, Louisville, Counsel for Appellee.

Opinion of the Court by Justice McANULTY.

On March 22, 2005, Daniel Cummings (Appellant) pleaded guilty to fifty-three charged offenses which consisted of multiple counts of rape, sodomy, and burglary, in addition to related charges of burglary, robbery, illegal use of a credit card and kidnapping. The charges were listed in three separate indictments that were ultimately consolidated, and included offenses ranging in time from February 1998 through August 2002.¹ Appellant appeals as a matter of right, arguing that his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were violated and that his 470-year sentence is in violation of KRS 532.110(1)(c).

I. Waiver of Fifth Amendment Right to Counsel

Appellant was arrested in September of 2002. He waived his Miranda rights and detectives began questioning him, using a tape recorder to record the interrogation. At some point during the interrogation, Appellant invoked his right to counsel and detectives immediately stopped questioning him and turned off the tape recorder. Detective Bryan Arnold stayed with Appellant when Detective Larry Duncan left the room.

According to Detective Arnold, Appellant shortly thereafter initiated conversation with him. Detective Arnold told Appellant he did not know if he could talk with him since Appellant had already asked for an attorney. Detective Arnold said Appellant stated that he would talk with Detective Arnold without a lawyer present. Detective Arnold informed Appellant that he had to readvise him of his Miranda rights, and did so. None of this exchange was tape-recorded. Outside the room, Detectives Duncan and Wilfong listened to the conversation. Before long, Detective Duncan instructed Detective Wilfong to go into the office and question Appellant about other rapes he was suspected of committing. The tape recorder was eventually turned back on and Appellant made incriminating statements.

Appellant moved to suppress the statements. At a hearing on the motion to suppress, Detective Arnold and Detective Duncan testified that Appellant was twice readvised of his Miranda rights and waived them. The detectives then resumed interrogation but did not restart the tape recorder. Appellant stated that he did not initiate conversation with Detective Arnold and alleged that while the tape recorder was turned off, Detective Duncan threatened him and his family.

The trial court denied his motion, focusing on the absence of any evidence of coercion, threat, or discomfort in the 175-page transcript of the interrogation. Appellant entered a guilty plea, conditioned on the appeal of the denial of his motion to suppress.

Appellant alleges that the waiver of his right to counsel was coerced. The standard of review for a motion to suppress requires a two-step determination. Welch v. Commonwealth, 149 S.W.3d 407 (Ky.2004). The factual findings by the trial court are reviewed under a clearly erroneous standard, and the application of the law to those facts is conducted under de novo review. Id. at 409.

In order to use statements, whether exculpatory or inculpatory, made by a defendant subjected to custodial interrogation, the prosecution must demonstrate that the Appellant was advised of his Fifth Amendment rights, including the right to remain silent and the right to an attorney. Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d 694. These rights may be waived and the statements may be used against the defendant if the waiver is knowing, voluntary, and intelligent. Id. Once an accused has expressed a desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981).

In the present case, Appellant has failed to show there was clear error in the trial judge's factual findings. The trial judge found that Appellant initiated conversation with detectives after invocation of the right to counsel, and that Appellant's waiver was not coerced. Although Appellant contended that he did not initiate conversation and that Detective Arnold threatened him, there was no evidence in the lengthy interrogation transcript to support this contention. In contrast, the testimony of the detectives and the transcript of the interrogation supported the trial court's findings. Taking note of the fact that the record contained transcriptions of the interviews in which Appellant was repeatedly advised of his rights, the trial judge commented that this was one of the best cases in terms of proof she had ever had. Given the unique position of the trial judge to assess the credibility of the witnesses' testimony on this issue, and the lack of support for Appellant's version of events, we conclude there was substantial evidence to accept the facts as the trial judge found them.

The trial judge also correctly applied the law to these facts. Appellant argues that the interrogating detectives were wrong in concluding that Appellant had waived his previously invoked right to counsel and that they were free to interrogate him. He cites the rule that: "Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present." McNeil v. Wisconsin, 501 U.S. 171, 177, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158 (1991) (emphasis in original), citing Arizona v. Roberson, 486 U.S. 675, 108 S.Ct 2093, 100 L.Ed.2d 704 (1988). However, in the case at bar, the police did not "reapproach" or initiate questioning with Appellant; rather, Appellant spoke to the detective.

To determine, pursuant to Edwards, if the accused has waived the right to counsel after initiating conversation, the court must determine whether (1) the inquiries or statements were intended to initiate a conversation with authorities and (2) there was a waiver of the right to counsel which was voluntary, knowing, and intelligent given the totality of the circumstances. Oregon v. Bradshaw, 462 U.S. 1039, 1045-1046, 103 S.Ct. 2830, 2835, 77 L.Ed.2d 405 (1983). In the present case, the trial court found that Appellant reinitiated the conversation with Detective Arnold, after which Appellant's rights were read to him again. The trial court found that this was voluntary on Appellant's part. The court concluded that Appellant was frequently advised of his rights and there was no evidence to show that his waiver was not completely voluntary. If there could have been any doubt that Appellant's initial waiver was not voluntary, knowing, and intelligent, numerous subsequent waivers erased the last shred of it. We find no error in the trial court's application of the law to these facts.

Because the trial judge's factual findings were not clearly erroneous and these facts were correctly applied to the law, we affirm the trial court's denial of Appellant's motion to suppress.

II. Application of the Sentencing Cap

At the sentencing hearing, Appellant was given consecutive sentences on all counts totaling 470 years. The Commonwealth argued that because the offenses listed in indictment 02-CR-002050 occurred while Appellant was on confinement or probation for a 1996 juvenile offense, the sentencing cap of seventy (70) years in KRS 532.110(1)(c) did not apply pursuant to an exception found in KRS 533.060(2). See Corbett v. Commonwealth, 717 S.W.2d 831, 833 (Ky.1986). At the sentencing hearing, the trial court agreed with the Commonwealth that Appellant was on juvenile probation, without specifying the source in the record of this conclusion. On appeal, Appellant argues that the 70-year sentencing cap applies to him and the 470-year sentence was contrary to law.

Initially, the Commonwealth contends that this court should not reach the question of the propriety of the sentence because it was not preserved for appellate review below. The Commonwealth claims that defense counsel conceded that Appellant was on probation as a juvenile at the sentencing hearing. We agree with Appellant that his argument as to sentencing and submission of a brief in favor of the application...