Keysor v. Commonwealth, 2013–SC–000531–DG

• Decision Date: 05 May 2016
• Docket Number: 2013–SC–000531–DG
• Citation: 486 S.W.3d 273
• Parties: Sherman Keysor, Appellant v. Commonwealth of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

486 S.W.3d 273

Sherman Keysor, Appellant

v.Commonwealth of Kentucky, Appellee

2013–SC–000531–DG

Supreme Court of Kentucky.

RENDERED: MAY 5, 2016

Counsel for Appellant: Erin Hoffman Yang, Assistant Public Advocate, Department of Public Advocacy

Counsel for Appellee: Andy Beshear, Attorney General of Kentucky, William Bryan Jones, Leilani K.M. Martin, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General

OPINION OF THE COURT BY JUSTICE VENTERS

Appellant Sherman Keysor entered a conditional Alford plea to two counts of first-degree sexual abuse, preserving his right to appeal the trial court's refusal to suppress statements he made to police during a custodial interrogation in the absence of his appointed counsel. Appellant argues that the incriminating statements were obtained in violation of his right to counsel under the Sixth Amendment and under Section 11 of the Kentucky Constitution

. Initially, based upon prevailing law, the trial court granted Appellant's motion and suppressed the statements. The trial court, however, reversed itself when United States Supreme Court rendered its opinion in Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009), which overturned long-standing Sixth Amendment precedent. The Court of Appeals, predicting that this Court would apply the Montejo rationale in the context of state right-to-counsel law, affirmed the trial court's decision. We granted discretionary review to consider, within the factual parameters of this case, Montejo's impact upon Kentucky's right-to-counsel jurisprudence.

I. FACTUAL AND PROCEDURAL HISTORY

Appellant was arrested in Graves County, Kentucky, and charged with two counts of first degree sexual abuse. He was arraigned in the Graves County District Court. Upon his application as an indigent, counsel was appointed to represent him on those charges. After a preliminary hearing, Appellant was bound over to the grand jury. Unable to post bond, he remained in jail and was indicted two months later. He was formally arraigned; his court-appointed attorney entered his appearance in the Graves Circuit Court; and a reciprocal discovery order was entered. Appellant remained in jail awaiting trial.

In the meantime, Graves County detectives investigating the case had informed police officials in neighboring Marshall County that Appellant's putative victim also claimed that Appellant had sexually abused her in Marshall County. Even though Appellant had been arraigned and was represented by counsel on the pending Graves County charges, police detectives from Marshall County, along with a state social worker, travelled to the Graves County jail to interrogate Appellant about the Marshall County allegations. Appellant's counsel in the Graves County case was not made aware of this interrogation.

At the outset of their interrogation, the officers advised Appellant of his Miranda

rights and informed him that they were there only to discuss the Marshall County allegations. With that understanding and without contacting or consulting his attorney, Appellant signed a waiver of his right to remain silent and voluntarily agreed to talk to Marshall County authorities. Despite their stated purpose to collect information only about the Marshall County allegations, the interrogation expanded to include questions pertinent to the pending Graves County charges. Appellant denied the allegations. When he said that a polygraph would confirm his innocence, the interrogating officers asked him to submit to a polygraph examination, and he did so. Eight days later, a polygraph examination was arranged by Marshall County police authorities. Appellant again waived his right to remain silent and submitted to the examination. Again, his appointed counsel was not informed of this procedure. During the interview with police that immediately followed the polygraph examination, Appellant made incriminating statements which the Commonwealth then decided to use in the pending Graves County prosecution.¹

After learning of these interrogations, Appellant's counsel moved to suppress the use of the statements in the trial of the Graves County charges. We emphasize that Appellant's suppression motion addressed only the admissibility of his statements in the trial of the Graves County charges, and this appeal is focused accordingly upon the use of his custodial statements as evidence in a trial of the Graves County charges for which he had already been indicted and upon which he was represented by counsel when the interrogation occurred. The admissibility of these statements in connection with the Marshall County charges is not before us. Obviously, different considerations would apply to that issue.

In support of his motion to suppress, Appellant argued that the use of the statements in the upcoming Graves County trial would violate his right to counsel as explained in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986)

, and as thereafter adopted by this Court in Linehan v. Commonwealth, 878 S.W.2d 8 (Ky.1994). In Jackson, the Supreme Court said: “We thus hold that, if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid.” Id. at 636, 106 S.Ct. 1404.

Line han

adopted the Jackson analysis verbatim.

Based upon Jackson

and Linehan, the trial court granted Appellant's motion to suppress the use of the statements in the Graves County trial. Immediately thereafter, the Commonwealth requested a reconsideration of the issue because just days before the trial court's ruling, the United States Supreme Court decided Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009), which expressly overruled Jackson. The Supreme Court decided in Montejo that a defendant, charged with murder and represented by counsel, may nevertheless be approached by police for interrogation without the knowledge or presence of counsel, and with the defendant's knowing, voluntary, and informed consent, any resulting statements may be admitted against him at trial despite counsel's exclusion from the interrogation.

Advised of Montejo,

the trial court reversed itself and denied Appellant's motion to suppress, reasoning that since Linehan was based upon Jackson, and Jackson was then overruled by Montejo, Linehan, too, was no longer reliable authority. Even though Linehan remained the controlling authority of this Court, the trial court speculated that if the opportunity arose to reconsider Linehan, this Court would follow Montejo for purposes of Section 11 of the Kentucky Constitution. The trial court expressly based its assumption on expressions of this Court that the constitutional right to counsel under Section 11 provided no greater protections than the Sixth Amendment of the United States Constitution.²

Thereafter, Appellant entered a conditional Alford plea to two counts of sexual abuse in the first degree, and preserved the suppression issue for appeal. The Court of Appeals affirmed, echoing the trial court's prediction that in light of Montejo

we would overrule Linehan. We granted discretionary review to examine our analysis in Linehan and clarify this important constitutional issue.³

II. ANALYSIS

Appellant's case straddles a dramatic shift in the United States Supreme Court's perception of the Sixth Amendment right to counsel. As far back as 1932, federal courts recognized in connection with the right to counsel that “the most critical period” for defendants during criminal proceedings is “from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important.” Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932)

.

In Massiah v. United States,

the Supreme Court reaffirmed the principle that post-indictment interrogations of an accused by police officers, or their agents, “without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.” 377 U.S. 201, 205, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (citation omitted).

In Jackson,

the Supreme Court merged the Fifth Amendment's right-to-counsel perspective as expressed in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), with Sixth Amendment right-to-counsel principles. Edwards held that an accused person who had invoked his right to counsel could not be subjected to further interrogation by police “until counsel has been made available to him” or “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484–485, 101 S.Ct. 1880. Thus, per Edwards, under the Fifth Amendment, police could not initiate a post-indictment interrogation of a defendant who had requested counsel or was represented by counsel. Statements obtained under those circumstances would be suppressed.

The Jackson

Court noted that the same reasoning applied with even greater force when analyzed under Sixth Amendment right-to-counsel analysis.

Indeed, after a formal accusation has been made—and a person who had previously been just a “suspect” has become an “accused” within the meaning of the Sixth Amendment—the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation.

Id. at 632, 106 S.Ct. 1404

.

Succinctly stated, the rule from Jackson

is that “if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid.” Jackson, 475...