Dean v. Com., 90-SC-691-MR

• Decision Date: 17 December 1992
• Docket Number: No. 90-SC-691-MR,90-SC-691-MR
• Citation: 844 S.W.2d 417
• Parties: Glen F. DEAN, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 417

844 S.W.2d 417

Glen F. DEAN, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 90-SC-691-MR.

Supreme Court of Kentucky.

Dec. 17, 1992.

Rehearing Denied Feb. 18, 1993.

Julie Namkin, Asst. Public Advocate, Frankfort, for appellant.

Chris Gorman, Atty. Gen., Ann Louise Cheuvront, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.

SPAIN, Justice.

The appellant, Glen F. Dean, Jr., was convicted by a jury in the Christian Circuit Court of two counts of first-degree rape, three counts of first-degree sodomy, one count of complicity to first-degree rape, and two counts of complicity to first-degree sodomy. He appeals as a matter of right his sentence to imprisonment for ninety years.

The evidence at trial established that on December 17, 1989, the sixteen-year-old victim was abducted by Dean and his co-defendant, Steven Allen Wallace, from a shopping mall parking lot in Hopkinsville. Wallace forced the young lady at knifepoint into his car, which Dean was driving. For the next three and one-half hours, the victim was transported to two different rural locations where she was raped and orally and anally sodomized repeatedly by both men.

At their joint trial, the co-defendant, Wallace, testified on his own behalf, but the appellant, Dean, declined to take the stand. Wallace recanted his prior statement given to the police and admitted that the victim's testimony was largely accurate, except that he denied raping her. The prosecution introduced into evidence the appellant's taped confession, which the trial court had declined to suppress at a pretrial hearing. Whether its admission violated Dean's state and federal constitutional rights is the principal issue in this appeal.

Five additional assignments of error are raised by the appellant, which we will hereafter discuss briefly. Four of these issues were common to the appeal by the co-defendant, Wallace, whose sentence to imprisonment for eighty years was affirmed by this Court in a non-published opinion rendered on September 24, 1992.

The additional issues question whether the trial court erred in denying both defendants a change of venue, whether the prosecutor committed reversible error by making allegedly "inflammatory" remarks to the jury, whether each defendant's complicity convictions were supported by sufficient evidence, whether the trial court improperly excluded defense evidence in the penalty phase, and whether the jury pool was improperly constituted. We affirm on all issues.

I. SHOULD DEAN'S CONFESSION HAVE BEEN SUPPRESSED?

The appellant argues that the trial court erred by denying his motion to suppress the taped statement which he gave to law enforcement officers, insisting that a comment made by him was tantamount to a request for counsel, thus requiring interrogation to cease.

At 10:05 a.m. on December 30, 1989, the appellant was arrested. He was fully advised of his Miranda rights and at 10:35 a.m., in the presence of the Hopkinsville Chief of Police, a city detective, and an FBI agent, he signed a waiver of rights form after it was read to him. He also acknowledged that he understood the waiver, following which he gave an oral statement. Afterward, Dean requested to see his mother and was told that he would be allowed to see her later. At 11:30 a.m., a tape-recorded interview and statement were commenced. The following colloquy took place:

Q: Do you understand all your rights? You have to say yes or no.

A: Yes sir.

Q: Is there any part you don't understand?

A: Should, should I, should I have somebody here? I don't know.

Q: Well, that's up to you, but you told us, you know, you're telling us your story. Now that's up to you. You know this is being recorded?

A: Yes sir.

Q: And it's being given under your own free will and accord, we've not promised or threatened you or anything like that?

A: Yes sir.

At the hearing held on his motion to suppress, defense counsel asked Dean what he meant by the above-quoted question, to which appellant testified that he "wanted to talk to somebody that would give [him] advice on what to do.... A lawyer, [his] mother, anybody, somebody to tell [him], cause nobody was telling [him] what [he] should do." His attorney argued that because appellant's question could be construed as an indirect request for counsel, the police officers should have ceased their interrogation and determined whether Dean was in fact revoking his prior waiver of the right to have counsel present.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court extended the Fifth Amendment right to remain silent to include the right to counsel during interrogation. The Court also gave the following guidance to interrogators when a suspect requests counsel:

If, however, [a suspect] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.

Id., 86 S.Ct. at 1612.

Again, the U.S. Supreme Court in the case of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reiterated the requirement that officers cease interrogation if an accused clearly asserts his right to have counsel present during custodial interrogation. Furthermore, the Court emphasized "... that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." 451 U.S. at 482, 101 S.Ct. at 1883.

At the pretrial suppression hearing before the trial court, defense counsel relied on the case of State v. Tidwell, 775 S.W.2d 379 (Tenn.Ct.App.1989), for its holding that an utterance of this nature triggers a duty on the part of the interrogators to clarify whether an accused intends by that remark to assert his constitutional right to counsel. In denying the motion to suppress, however, the trial judge agreed with the Commonwealth that Tidwell was distinguishable on its facts since there the equivocal remark of the accused actually made reference to the word "lawyer." Dean, on the other hand, never once spoke of a "lawyer," "attorney," or "counsel" during his interrogation.

In Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984), the U.S. Supreme Court dealt with a situation wherein an accused clearly requested the assistance of counsel during preliminary questioning. Instead of terminating the interrogation at that point, however, the police detectives continued to press the suspect again to answer their questions. Finally he admitted knowing in advance about the planned robbery and, after considerable probing by the detectives, confessed to having committed it.

In holding that the trial court's refusal to suppress the confession violated Smith's constitutional rights, the Court observed that these custodial interrogation cases require two distinct inquiries. "First, courts must determine whether the accused actually invoked his right to counsel.... Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked." Id., 469 U.S. at 95, 105 S.Ct. at 492, 493.

After stating that the Smith case concerned the threshold inquiry of whether Smith invoked his right to counsel in the first instance, the Court observed:

On occasion, an accused's asserted request for counsel may be ambiguous or equivocal. As the majority and dissenting opinions below noted, courts have developed conflicting standards for determining the consequences of such ambiguities.

Id., 469 U.S. at 95, 105 S.Ct. at 493.

Some courts have held that all questioning must cease upon any request for or reference to counsel, however equivocal or ambiguous (citing a California and a Texas case). Others have attempted to define a threshold standard of clarity for such requests, and have held that requests falling below this threshold do not trigger the right to counsel. (Citing an Illinois case holding: "[A]n assertion of the right to counsel need not be explicit, unequivocal, or made with unmistakable clarity," but not "every reference to an attorney, no matter how vague, indecisive or ambiguous, should constitute an invocation of the right to counsel.") Still others have adopted a third approach, holding that when an accused makes an equivocal statement that "arguably" can be construed as a request for counsel, all interrogation must immediately cease except for narrow questions designed to "clarify" the earlier statement and the accused's desires respecting counsel (citing a 5th Circuit and an Idaho case).

Id., 469 U.S. at 96 n. 3, 105 S.Ct. at 493 n. 3.

Our task, then, under Edwards v. Arizona, supra, 451 U.S. at 484-85, 101 S.Ct. at 1884-85, is to decide herein whether Dean clearly "invoked his right to have counsel present" or "expressed his desire to deal with the police only through counsel."

After examining the various approaches for resolving such ambiguous or equivocal remarks as appear in this case, we are drawn to the standard recently enunciated by our sister state, the Commonwealth of Virginia, from which our own Commonwealth was born. In Eaton v. Com., 240 Va. 236, 397 S.E.2d 385 (Va.1990), the Supreme Court of Virginia concluded that "the standard prevailing in Virginia is that a request for counsel must be 'unambiguous and unequivocal' in order to trigger the Edwards rule." In our opinion, this standard most closely and correctly interprets the direction in Edwards that custodial interrogation must cease when an accused who has received Miranda warnings and has begun responding to questions "has clearly asserted his right to counsel." Edwards, 451 U.S. at 485, 101 S.Ct. at 1885 (emphasis added). Since Dean's words and conduct fell short of that standard, we hold that he failed to invoke his right to cou...