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[11] |
On August 30, 1995, Arthur L. Phipps was stabbed to death. Appellant, John Mills, was convicted of Phipps's murder, first-degree burglary, and first-degree robbery and was sentenced to death. He appeals to this Court as a matter of right, raising some thirty-two issues on appeal. We affirm both the conviction and the sentence.
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[12] |
Phipps's son-in-law, Terry Sutherland, discovered Phipps's body. On the day of the murder, Sutherland twice went to Phipps's house. On the first occasion, he left Phipps alive and in good spirits. Upon arriving the second time, he discovered a trail of blood leading up the front steps. He followed the trail of blood through the house. Sutherland found puddles of blood in the living room, and more blood in Phipps's bedroom and bathroom. He followed the blood trail to the kitchen where he found a pair of pants lying on the floor. Unable to locate Phipps inside the house, Sutherland went back outside where he found Phipps's body. While securing the crime scene, State Trooper Clyde Wells discovered a trail of blood leading away from Phipps's body. Wells and another police officer followed the blood trail to the front of a house rented from Phipps by Mills. Wells saw blood on the exterior walls of the house, on the front door, and a trail of blood crossing the front porch which led to a window. As Wells walked past a window at the back of the house, Mills opened the window and stared at Wells. Wells identified himself as a police officer and ordered Mills to remain where he was. Wells then went to the rear door of the house, which was open, and went inside.
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[13] |
The house was unlit and dark. Wells navigated through the house with the aid of a flashlight until he was able to locate a light switch. Wells flipped the switch and found Mills standing inside a doorway. Mills put up his hands and surrendered to Wells, whereupon Wells placed Mills in custody by putting him in handcuffs and advising him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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[14] |
Detective Gary Partin followed Wells into the house. Partin placed Mills under arrest for Phipps's murder and also advised him of his Miranda rights. Mills told Partin he did not want to speak with him. Partin and Wells escorted Mills outside the house. At some point, the handcuffs were removed from Mills because he was bleeding profusely from the left wrist. Also, at some point, Partin directed Sergeant Charles Elliot to bring a video camera to the crime scene.
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[15] |
Detective Ancil Hall arrived at Phipps's residence approximately ten minutes after Partin. Shortly thereafter, he was advised that a suspect was in custody at a nearby residence. When Hall arrived at Mills' house, Mills was lying on the ground covered with blood. Either prior to or after Hall's arrival, medical personnel arrived on the scene and began treating Mills' injuries. Partin informed Hall that he (Partin) already had advised Mills of his Miranda rights. Nonetheless, Hall again informed Mills of those rights. Mills told Hall that he would talk to him, and Hall proceeded to question Mills. At some point during the interrogation, Elliot arrived with the video camera and taped Mills' confession. The videotape of Mills' confession was played in its entirety before the jury.
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[16] |
I. ARREST AND SEARCH |
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[17] |
Mills argues that no exigent circumstance existed which allowed the police to make a warrantless entry into his home to effectuate his arrest. This allegation of error is unpreserved. However, because the death penalty was imposed in this case, we review this error under the standard set forth in Sanders v. Commonwealth, KY., 801 S.W.2d 665 (19901, cert. denied, 502 U.S. 831, 112 s. ct. 107, 116 L. Ed. 2d 76 (1991):
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[18] |
Assuming that the so-called error occurred, we begin by inquiring: (1) whether there is a reasonable justification or explanation for defense counsel's failure to object, e.g., whether the failure might have been a legitimate trial tactic; and (2) if there is no reasonable explanation, whether the unpreserved error was prejudicial, i.e., whether the circumstances in totality are persuasive that, minus the error, the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed. Id. at 668.
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[19] |
However, we are not bound to assume error. Perdue V . Commonwealth, KY., 916 s.w.2d 148, 154 (1995), cert. denied, 519 U.S. 855, 117 S. Ct. 151, 136 L. Ed. 2d 96 (1996).
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[20] |
The police followed a blood trail to Mills' residence. There was fresh blood on the walls of the house, on an open window, and on the door and the porch. Detective Partin testified that based upon this physical evidence, he suspected that the perpetrator was inside the house and was wounded as well. Upon these facts, defense counsel could have made no legitimate argument that the police lacked exigent circumstances to enter Mills' residence at the time in order to render immediate aid and assistance. See Mincev v. Arizona, 437 U.S. 385, 392-93, 98 S. Ct. 2408, 2413, 57 L. Ed. 2d 290 (1978); Todd v. Commonwealth, KY., 716 S.W.2d 242, 247-48 (1986). The mere fact that the suspected perpetrator was also the person aided and assisted does not remove exigency of the circumstance.
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[21] |
Mills' argument that the search of the house was illegal and the fruits of that search should have been suppressed is also unpreserved. To the extent that this argument is based upon the argument that his arrest was illegal, that part of the argument is disposed of immediately above. The additional basis urged for finding the search to be illegal is on the grounds that there was no warrant for the search which occurred after Mills had been arrested and escorted outside of the house for medical treatment. Clearly, the exigent circumstances had vanished at that point. However, "[c]onsent is one of the exceptions to the requirement for a warrant." Cook v. Commonwealth, KY., 826 S.W.2d 329, 331 (1992). To be constitutionally valid, the Commonwealth must prove by a preponderance of the evidence that consent was voluntarily given. Id. "The question of voluntariness turns on a careful scrutiny of all the surrounding circumstances in a specific case." Id.
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[22] |
On the videotape, the following exchange between Detective Hall and Mills occurs: |
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[23] |
Hall: Can we go in [your house] and look around? |
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[24] |
Mills: I got the key right in my pocket. |
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[25] |
Hall: You don't care if we go in and look around? |
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[26] |
Mills: Buddy open the door. I don't care.
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[27] |
Hall: You understand you don't have to let us look, now? |
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[28] |
Mills: I don't give a f--k. |
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[29] |
Upon these facts, defense counsel could have made no legitimate argument that Mills did not voluntarily consent to the search of his house. |
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[30] |
II. VOLUNTARINESS OF THE CONFESSION
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[31] |
On February 27, 1996, Mills filed a motion entitled: Motion for the Court to in-camera review the video-taped interview of the defendant to determine the admissibility of said video-taped statement. In the motion, Mills argued that the trial court should suppress his confession on grounds that his intoxication and injuries rendered the confession involuntary and unreliable. Upon review of the videotape, the trial court found that Mills' intoxication did not rise to the level of mania required by Britt v. Commonwealth, KY., 512 S.W.2d 496 (1974). The trial court further found Mills' injuries were not sufficiently serious to render the confession involuntary. Finally, the trial court found that Mills' confession was not the product of duress or coercion.
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[32] |
Mills argues that the trial court's in camera review of the videotape did not satisfy the requirements of RCr 9.78, which are mandatory. The rule requires the trial court to hold an evidentiary hearing whenever a defendant moves to suppress a confession made to police authorities. In this case, the trial court did not hold an evidentiary hearing. The Commonwealth argues that because an in camera review was all that Mills asked for, that was all he was entitled to. Reluctantly, we disagree.
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[33] |
RCr 9.78 places affirmative duties upon the trial court. The rule does not require that the defendant move for an evidentiary hearing. Instead, the rule mandates that a trial court shall hold an evidentiary hearing outside of the presence of the jury whenever a defendant moves to suppress a confession or other incriminating statements made to the police.
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[34] |
In the case at bar, the trial court erred when it failed to hold an evidentiary hearing to determine the admissibility of the confession. However, the error was harmless.
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[35] |
Most of Mills' confession was videotaped. There are no material or substantial facts in dispute surrounding the events occurring during the making of Mills' confession. In Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), the United States Supreme Court stated that, absent a substantial factual dispute in the evidence, voluntariness of a confession may be properly decided by a reviewing court. Id. at 391-92, 84 s. ct. at 1789. The voluntariness of a confession is assessed based on the totality of circumstances surrounding the
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