Henson v. Com.

Decision Date26 August 1999
Docket NumberNo. 97-SC-0580-MR.,97-SC-0580-MR.
Citation20 S.W.3d 466
PartiesTracy Neal HENSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Shelly R. Fears, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for Appellant.

A.B. Chandler III, Attorney General, Paul D. Gilbert, Assistant Attorney General, Office of the Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

ROBERT B. HENSLEY, Special Justice.

Appellant, Tracy Neal Henson, was convicted in the Hardin Circuit Court of first-degree burglary and of second-degree burglary. He received consecutive sentences totaling twenty years imprisonment. Appellant now appeals to this Court as a matter of right. We affirm.

On October 19, 1995, Detectives Carr and Netherland arrested Appellant at his job site for first-degree burglary. Detective Carr gave Appellant the required Miranda warnings and placed him in the patrol car. While in the patrol car with Detective Carr, Appellant was told there was a warrant to search his residence, which was also the residence of his girlfriend, Melanie Snyder. Appellant asserts that he was told if he failed to cooperate and to tell the police "everything they asked," Ms. Snyder would be arrested for receiving stolen property and could lose custody of her daughter. Appellant confessed to the burglary, and Detective Carr recorded the confession. There is no dispute that Detective Netherland was not present in the patrol car when the confession was given, and that it was Detective Carr alone who conducted the interrogation.

After Detective Carr recorded Appellant's confession, both officers drove Appellant to his residence to execute the search warrant. Thereafter, Appellant was transported to the Kentucky State Police post, where he received a second Miranda warning. While inventorying the property seized during the search, Appellant confessed to another burglary. Detective Netherland was present during only parts of the second confession. Because of interruptions during the second interrogation, Appellant received a third Miranda warning.

The trial court conducted a suppression hearing on June 4, 1996, to determine whether the first confession was voluntary or coerced. The Commonwealth presented only the testimony of Detective Netherland, who was not present during the initial confession; however, it is not disputed as to what transpired. Appellant testified that he felt threatened by Detective Carr's statements that if he did not fully cooperate with the police, they would arrest his girlfriend and her child could be taken away. The trial court, after hearing the evidence presented, denied the motion to suppress on the grounds that Detective Carr's alleged comment was merely a statement of fact and not a coercive threat.

Appellant alleges three errors with respect to the introduction of his taped confessions at trial. First, he argues that the Commonwealth failed to establish during the suppression hearing that, as a matter of law, his first confession was voluntary. Second, in his supplemental brief Appellant argues that the trial court should have suppressed his confession because Detective Carr continued to question him after he invoked his right to counsel and, therefore, obtained the confession in violation of his right against self-incrimination. Third, Appellant argues that he was denied due process when the trial court allowed the Commonwealth to play his entire taped confessions to the jury.

VOLUNTARINESS OF CONFESSION

Appellant asserts that the Commonwealth failed to meet its burden because it did not offer the testimony of at least one officer who was actually present when Appellant confessed. Under Tabor v. Commonwealth, Ky., 613 S.W.2d 133, 135 (1981), two requirements are necessary to establish voluntariness: 1) "[T]he prosecution must affirmatively establish the voluntariness of a confession by a preponderance of the evidence," and 2) "Police officers present when the confession was given should be called to testify at the hearing or their absences should be accounted for." See also Canter v. Commonwealth, Ky., 870 S.W.2d 219, 220-21 (1994).

The Commonwealth responds that Detective Netherland's testimony at the suppression hearing satisfied the Tabor requirements. While Detective Netherland was not present during the initial confession, he was an integral part of the ongoing investigation. In Tabor, the Commonwealth called no witnesses and introduced no evidence. The only evidence offered at the hearing was the defendant's testimony and the testimony of a jailer, whom the defendant had told the police had beat him up. During Appellant's suppression hearing, however, the Commonwealth called Detective Netherland who was an integral part of the investigative interrogations. The Commonwealth presented evidence that Appellant had received three separate Miranda warnings. Under these facts, we are of the opinion that the Tabor standard was inapplicable as Appellant admitted he had been given legally sufficient Miranda warnings.

Having concluded that the Commonwealth met its burden of proof during the suppression hearing, the next issue is whether the trial court properly ruled that Detective Carr's statement was merely a statement of fact, not a coercive threat. Detective Carr told Appellant that he had a warrant to search Appellant's residence, and that if he did not cooperate and tell the police "everything they asked," they would arrest Ms. Snyder for receiving stolen property and she could lose custody of her daughter.

The trial court relied on Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384 (1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2260, 90 L.Ed.2d 704 (1986), to find that Appellant merely confessed at that time to protect Ms. Snyder from being prosecuted. In Kordenbrock, the defendant confessed because he thought that if he didn't his friends would be "hassled," and that "something bad might" happen to him and a woman he had casually dated, whom the police had picked up with him. Id. at 388. Kordenbrock differs from this case, however, because Kordenbrock never alleged that anyone made coercive statements to him. Id. Thus, while he did confess out of some motivation to protect his friends, he did not do so as a result of alleged coercion.

The trial court also relied upon KRS 514.110(2) (receiving stolen property) and Jackson v. Commonwealth, Ky., 670 S.W.2d 828 (1984), which states that possessing "stolen property is prima facie evidence of guilt of the theft of the property," to fmd that Detective Carr's statements were not coercive, but rather mere statements of fact. Under Kentucky law, occupants of a house can be held responsible for stolen property found there. Since it would have been entirely proper to charge Ms. Snyder with receiving stolen property, in the event that such was discovered during execution of the search warrant, Detective Carr's comment that Ms. Snyder would be arrested and lose custody of her child appears much more like a statement of fact than a coercive threat.

To determine whether a confession is the result of coercion, one must look at the totality of the circumstances to assess whether police obtained evidence by overbearing the defendant's will through making credible threats. Arizona v. Falminante, 499 U.S. 279, 286-88, 111 S.Ct. 1246, 1252-53, 113 L.Ed.2d 302 (1991); Alice v. Commonwealth, Ky., 454 S.W.2d 336, 341 (1970). The three criteria used to assess voluntariness are 1) whether the police activity was "objectively coercive;" 2) whether the coercion overbore the will of the defendant; and 3) whether the defendant showed that the coercive police activity was the "crucial motivating factor" behind the defendant's confession. Morgan v. Commonwealth, Ky., 809 S.W.2d 704, 707 (1991)(adopting federal due process standards of McCall v. Dutton, 863 F.2d 454 (6th Cir.1988). Any statement that was not the product of the defendant's free choice at that time was not voluntary.

The issue of voluntariness of a confession is a mixed question of fact and law. The learned trial judge determined that Henson had the opportunity to make an informed and rational decision about whether or not to incriminate himself. When the trial court is faced with conflicting testimony regarding the voluntariness of a confession, its determination, including its evaluation of credibility, if supported by substantial evidence, is conclusive. Crawford v. Commonwealth, Ky., 824 S.W.2d 847, 849 (1992); Harper v. Commonwealth, Ky., 694 S.W.2d 665 (1985); Edwards v. Commonwealth, Ky., 500 S.W.2d 783 (1973); RCr 9.78.

Here, Appellant, claims his confession was coerced, and therefore involuntary, because he felt threatened by a true statement of fact. In other words, he was a victim of police misconduct because the true statement of fact unfairly impaired his capacity to make a rational choice and contributed to a confession which he otherwise would not have...

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