APPEAL FROM BRECKINRIDGE CIRCUIT COURT
HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 14-CR-00002
OPINION
REVERSING AND REMANDING
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BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Bill Joe Roof brings this appeal from a February 23, 2018, Breckinridge Circuit Court Judgment and Sentence on Plea of Not Guilty upon a jury verdict finding Roof guilty of two counts of first-degree sexual abuse, two counts of third-degree sodomy, and sentencing him to a total of fourteen-years' imprisonment. We reverse and remand.
On January 9, 2014, Roof was indicted by a Breckinridge County Grand Jury upon the following four counts:
COUNT I: That on, about or between August 2010 and August 15, 2012[,] in Breckinridge County, Kentucky, the Defendant, Bill Roof, committed the offense of Sexual Abuse in the First Degree, when being over 21 years of age, he subjected K.R. (DOB: 08/16/1996), a person less than sixteen (16) years of age, to sexual contact;
COUNT II: That on, about or between August 16, 2010[,] and August 2013 in Breckinridge County, Kentucky, the Defendant, Bill Roof, committed the offense of Sexual Abuse in the First Degree, when being in a position of authority or special trust he subjected K.R. (DOB: 08/16/1996), a person less than eighteen (18) years of age, to sexual contact;
COUNT III: That on, about or between August 2010 and August 15, 2012[,] in Breckinridge County, Kentucky, the Defendant, Bill Roof, committed the offense of Sodomy in the Third Degree, when being over 21 years of age or more, subjected K.R. (DOB: 08/16/1996), a person less than sixteen (16) years of age, to deviate sexual intercourse; [and]
COUNT IV: That on, about or between August 16, 2012, and August 13, in Breckinridge County, Kentucky, the Defendant, Bill Roof, committed the offense of Sodomy in the Third Degree, when he, being a person in a position of authority or special trust, subjected K.R. (DOB: 08/16/1996), a person less than eighteen (18) years of age, to deviate sexual intercourse[.]
Indictment at 1. Roof was accused of committing the above sexual offenses against his step-daughter, K.R., while she was in high school and principally residing with Roof and her mother.
A jury trial ensued, and Roof was found guilty of all of the indicted offenses. Pursuant to the jury's verdict, the circuit court ordered the sentences of imprisonment for the four offenses to run consecutively for a total of fourteen-years' imprisonment. This appeal follows.
Roof's first argument on appeal is that the circuit court erred by failing to suppress admissions he made during an interview with Sheriff Todd Pate and Jennifer Hayes, a social worker employed by the Kentucky Cabinet for Health and Family Services. Roof asserts that the interview constituted a custodial interrogation and that it was undisputed that Sheriff Pate did not inform Roof of his rights under Miranda v. Arizona, 384 U.S. 436 (1966) at any point during the interview. As a result, Roof maintains that his admissions during the "custodial interrogation" should have been suppressed:
[Roof] submits that it was clear that he was under custodial interrogation. The ominous summoning of [Roof] by the Sheriff to his office, left [Roof] with a 'come or else' understanding of his situation. While the Sheriff did not draw a gun or impound [Roof's] truck, the summoning was not one of free will, but one of coercion. Any other similarly situated person who plies their trade on the highways would understand that a failure to comply with the Sheriff's summons could result in a legal summons that would leave [Roof's] truckimpounded. This is equally true of the interrogation conducted at the Sheriff's office.
While Sheriff Pate and Jennifer Haynes have different recollections on whether or not [Roof] was told that he could terminate the interview and leave, the Sheriff, who actually conducted the interview stated that he did not recall telling [Roof] he could leave. Equally, [Roof] was unequivocal in his assertion that he was not told that he was free to leave. [Roof] specifically remembers the Sheriff telling him that he could be arrested and that his truck, with the military load on it, could be detained. [Roof], or any reasonable person in his position, would understand that his failure to continue the interview and to provide the desired information would result in either arrest or the detention of his truck. Either action could have catastrophic effects on [Roof's] career as an independent trucker and his livelihood. While [Roof] was not physically constrained, the constraint on Mr. Roof's livelihood was as strong as any physical bond. The entire circumstances was one created to compel [Roof] to provide a statement.
Roof's Brief at 10-11 (citations and footnotes omitted). So, Roof argues that the circuit court erred by concluding that he was not subject to custodial interrogation, and thus, Sheriff Pate was not required to inform Roof of his Miranda rights. See Miranda, 384 U.S. 436. For the following reasons, we disagree.
It is well-established that the constitutionally mandated Miranda warnings are only implicated if a suspect is in custody. Smith v. Commonwealth, 312 S.W.3d 353, 357-58 (Ky. 2010) (quoting Commonwealth v. Lucas, 195 S.W.3d 403, 405 (Ky. 2006)); see also United States v. Washington, 431 U.S. 181, 188-89 (1977); Thompson v. Keohane, 516 U.S. 99, 102 (1995). And, a custodialinterrogation "has been defined as questioning initiated by law enforcement after a person has been taken into custody or otherwise deprived of freedom of action in any significant way." Lucas, 195 S.W.3d at 405. To constitute custody, law enforcement must either by a show of authority or physical force restrain the liberty of a suspect. Smith, 312 S.W.3d at 358. The ultimate test "is whether, considering the surrounding circumstances, a reasonable person would have believed he or she was free to leave." Id. To answer this question, the following factors should be considered:
[T]he threatening presence of several officers; the display of a weapon by an officer; the physical touching of the suspect; and the use of tone of voice or language that would indicate that compliance with the officer's request would be compelled. . . . [T]he purpose of the questioning[,] . . . whether the place of the questioning was hostile or coercive[,] . . . the length of the questioning[,] and . . . other indicia of custody such as whether the suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so, whether the suspect possessed unrestrained freedom of movement during questioning, and whether the suspect initiated contact with the police or voluntarily admitted the officers into the residence and acquiesced to their requests to answer some questions.
Smith, 312 S.W.3d at 358-59 (citing United States v. Mendenhall, 446 U.S. 544 (1980); United States v. Salvo, 133 F.3d 943, 950 (6th Cir. 1998).
In this case, the circuit court conducted an evidentiary hearing. Thereafter, the court rendered Findings of Fact, Conclusions of Law and Judgment and denied Roof's motion to suppress. In particular, the circuit court determined:
FINDINGS OF FACT
(3) The Defendant is a truck driver and was in Crane, Indiana when contacted by the Sheriff. The Defendant testified that the Sheriff stated that he wanted to talk to him that day and that this matter should not wait until the next day. The Defendant was on a tight contractual schedule regarding his trucking business but did make arrangements to drive back to Breckinridge County the day the Sheriff contacted him.
(4) The Defendant met the Sheriff at the Sheriff's Office and submitted to an interview with the Sheriff in the presence of the social worker. The interview occurred in the Sheriff's office. His office is used for a variety of things, including questioning people. It is not a dedicated interrogation room. The door to the office was closed for privacy reasons.
(5) The Sheriff testified that he did not have any intention of arresting the Defendant either during or after the interview. The purpose of the interview was to compare the Defendant's statements with the victim's statements. The Sheriff testified that the Defendant was a suspect even before he met with the Sheriff. The Sheriff testified that he wanted to lay out the facts and allow the Defendant to comment on them. The Sheriff testified that if the Defendant had refused to talk to him that he was going to submit the matter directly to the Grand Jury, but did not tell the Defendant this.
(6) The interview lasted about thirty (30) minutes. At no point until the end of the interview did the Defendant ask to leave or ask to call someone and he did not request an attorney. The Defendant made incriminating admissions during the interview, however, the Sheriff did not arrest the Defendant after the interview.
(7) The Sheriff does not recall advising the Defendant that he was free to leave. The Sheriff testified that he felt fairly confident that he told the Defendant he could leave when he wanted to and that he was not going to be arrested, but he could not say with enough certainty to state that under oath. The social worker testified that the Sheriff did tell the Defendant that he did not have to speak with him during this interview and that no one was trying to coerce him into saying anything. The social worker further testified that she was sure the Sheriff told the Defendant he was free to leave several times during the interview.
(8) The social worker testified that the Sheriff did not bully the Defendant or raise his voice to the Defendant and that the Defendant's demeanor was polite and cooperative. He never asked to leave the room. The Sheriff testified that he did not tell the Defendant that if
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