Welch v. Com., No. 2002-SC-0645-MR.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtLambert
Citation149 S.W.3d 407
PartiesChristopher WELCH, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
Docket NumberNo. 2002-SC-0645-MR.
Decision Date18 November 2004
149 S.W.3d 407
Christopher WELCH, Appellant,
v.
COMMONWEALTH OF KENTUCKY, Appellee.
No. 2002-SC-0645-MR.
Supreme Court of Kentucky.
November 18, 2004.

[149 S.W.3d 408]

Timothy G. Arnold, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General of Kentucky, Elizabeth A. Heilman, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.

LAMBERT, Chief Justice.


Appellant, Christopher Welch, was convicted of one count of sodomy in the first degree and of one count of sexual abuse in the first degree. He was sentenced to a twenty-year term of imprisonment. The charges arose from statements made by Appellant during his treatment at a juvenile sex offender program. Appellant entered a conditional guilty plea to the above charges and reserved the right to appeal the Boyle Circuit Court's denial of his motion to suppress these statements. The issue here is whether statements made by a juvenile to counselors without Miranda1 warnings during treatment may be used to pursue a new criminal investigation and prosecution.

Appellant was adjudicated as a juvenile sex offender and committed to the Department of Juvenile Justice ("DJJ"). He was sent to Rivendell, a treatment facility, to participate in the juvenile sex offender treatment program. While at Rivendell and participating in the treatment program, Appellant disclosed to his counselor several uncharged acts of sexual misconduct. The counselor notified social workers who then notified the Boyle County Sheriffs Department. Deputy Sheriff Jim

149 S.W.3d 409

Wilcher investigated the allegations and he, along with Kentucky State Police Detective Lisa Rudinski, traveled to Rivendell to interview Appellant. The officers gave Appellant his Miranda warnings and proceeded to interview him. Appellant gave the officers a full statement in which he confessed to sodomizing a five-year-old child approximately twenty times. Appellant's confession was consistent with the information previously gathered by Deputy Wilcher from the young child.

Appellant presented evidence at the suppression hearing regarding the juvenile sex offender treatment program and evidence regarding the lack of warnings given to him. The evidence revealed that participation in the juvenile sex offender program is not voluntary, but rather the participants are at these treatment programs by court order and must follow the rules and procedures of the program. The program uses group therapy and group dynamics as a means to further the goals of the program. Participants are strongly encouraged, by counselors and other group members, to admit and disclose all prior sexual misconduct. This fosters treatment and reprogramming of the behavior of those involved. Testimony during the suppression hearing described participation in this part of the program as essential to progress toward completion of the program as ordered by the court. Progress in the program is required to obtain and keep certain privileges during treatment.

Appellant received no warning or notice that his counseling disclosures could result in criminal prosecution. When Appellant made the statements to counselors at Rivendell, no Miranda warnings were given. The first time Appellant was made aware of his right to remain silent occurred when he was interviewed at the treatment facility by the police officers. The record does not contain any written verification of waiver at that time. As a result of his statements, Appellant was charged with the offenses herein. Following the denial of his suppression motion, Appellant entered the conditional guilty plea from which this matter of right appeal2 is taken.

Appellant argues that the trial court erred when it failed to suppress his statements made to the counselors at Rivendell. He presents three alternative reasons as to why the statements should have been suppressed: (1) the statements were obtained in violation of Miranda, (2) the statements were involuntary, and (3) the statements were privileged. The Commonwealth argues that such statements made to counselors are not privileged and are voluntary, and that the counselors are not agents of the police.

Appellate review of a motion to suppress is governed by the standard expressed by the Supreme Court of the United States in Ornelas v. United States3 and adopted by this Court in Adcock v. Commonwealth.4 The approach established by the Supreme Court of the United States is a two-step process that first reviews the factual findings of the trial court under a clearly erroneous standard.5 The second step reviews de novo the applicability of the law to the facts found.6 The only evidence of record was presented by Appellant during the suppression hearing. The Commonwealth did not present any evidence. As summarized hereinabove, we

149 S.W.3d 410

discern no clear error regarding the pertinent factual findings.

Upon review of the law, the initial inquiry must be whether the Fifth Amendment of the United States Constitution or Section 11 of the Kentucky Constitution securing the privilege against self-incrimination is applicable to this situation. The privilege has been held to protect a person from being forced to put forth evidence against himself or herself and "the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites."7 Moreover, the privilege is not limited to criminal proceedings and protects in circumstances where the person's freedom is curtailed.8 Here, the unwarned statements made by Appellant while he was in state custody were used to initiate a new prosecution and this type of communication is of a character to require an analysis under the Fifth Amendment and Section 11 of the Kentucky Constitution. Kentucky decisions generally hold Section 11 to be coextensive with the Fifth Amendment.9

A custodial interrogation is a prerequisite for invoking the necessity of Miranda warnings.10 It has been held that "Miranda and its progeny in this Court [the Supreme Court of the United States] govern the admissibility of statements made during custodial interrogation in both state and federal courts."11 Miranda is not just a prophylactic rule but is rather a constitutionally-based rule of law.12 Here, Appellant was committed by the court to DJJ and placed in the juvenile sex offender program at the treatment facility. For this reason, Appellant's participation in the juvenile sex offender program was involuntary. Based upon the court ordered commitment, Appellant was in state custody. During the treatment program, the counselors intensely questioned Appellant, not only about the offense that resulted in the commitment, but also about any other sexual misconduct. The questioning regarding other sexual misconduct was a necessary part of the juvenile sexual offender program where the participants were "strongly encouraged" to admit additional sexual misconduct. Such questioning and encouraged disclosure amounted to coercion in the course of a custodial interrogation.

Another Miranda requirement is state action. The counselors who questioned Appellant were employees of the treatment facility, not law enforcement officers. Generally, questioning by law enforcement is required to trigger the necessity for Miranda warnings. On the other hand, the Supreme Court of the United States has recognized the applicability of Miranda in situations not involving law enforcement. In Estelle v. Smith,13 the Court held that a psychiatrist, who performed

149 S.W.3d 411

an involuntary evaluation of the defendant, could not testify regarding information that had been gathered by questioning during the evaluation, because the defendant had not been apprised of his Fifth Amendment rights. The examining physician was not a law enforcement officer, but the Court held that the doctor went beyond a routine examination and gathered information during the evaluation to testify concerning the defendant's future dangerousness and to assist the prosecution in seeking the death penalty. Here, the counselors gathered information regarding previously undisclosed sexual misconduct and delivered that information to law enforcement officers.

The title and employer of the questioner are not the sole basis for determining state action; rather courts must determine whether the interrogation was such as to likely result in disclosure of information which would lead to facts that would form the basis for prosecution.14 In this case, the likelihood of such a disclosure was virtually overwhelming. Accordingly, the counselors who interrogated Appellant were state actors for the purpose of the Fifth Amendment, and Appellant should have been informed of his Miranda rights regarding his privilege against self-incrimination.

Supporting this view is State v. Evans,15 where the Ohio Court of Appeals held that statements disclosed to counselors by a juvenile, who was under involuntary commitment for treatment, were not admissible against the juvenile. The facts in Evans and the facts of this case are very similar, in that both cases dealt with juveniles who had been committed by the court to receive treatment. Another similarity is that both juveniles, upon the encouragement of the treatment program, admitted to prior misconduct that resulted in subsequent prosecution. The Evans court held the appellant's statements to be inadmissible in violation of the Fifth Amendment. The court held that the appellant was in the "classic penalty" situation wherein the privilege against self-incrimination is self-executing, and he "was unconstitutionally forced to choose between a substantial penalty and self-incrimination."16 The Evans court held that the trial court had properly suppressed the appellant's written and oral confession...

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112 practice notes
  • Dunlap v. Commonwealth, 2010-SC-000226-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • June 20, 2013
    ...application of the law to the established facts to determine whether its ruling was correct as a matter of law. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004).III. ANALYSIS A. The Trial Court Properly Accepted Appellant's Guilty Plea Appellant first argues that the trial court violat......
  • Meece v. Commonwealth, 2006-SC-000881-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • June 16, 2011
    ...application of the law to the established facts to determine whether its ruling was correct as a matter of law. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004).III. AnalysisA. Evidentiary Issues—Evidence Admitted at Trial1. Meece's Videotaped Statements of November 15 and December 15,......
  • Carolina v. Commonwealth, No. 2011–SC–000271–DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • April 25, 2013
    ...KRS 600.020(48). 5.Herring v. United States, 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). 6. In Welch v. Commonwealth, 149 S.W.3d 407, 411–12 (Ky.2004), this Court ordered the suppression of a juvenile's confession. Welch, however does not conflict with the view I herein espous......
  • Dunlap v. Commonwealth, No. 2010–SC–000226–MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • February 20, 2014
    ...application of the law to the established facts to determine whether its ruling was correct as a matter of law. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.2004).III. ANALYSIS.A. The Trial Court Properly Accepted Appellant's Guilty Plea. Appellant first argues that the trial court violat......
  • Request a trial to view additional results
113 cases
  • Dunlap v. Commonwealth, 2010-SC-000226-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • June 20, 2013
    ...application of the law to the established facts to determine whether its ruling was correct as a matter of law. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004).III. ANALYSIS A. The Trial Court Properly Accepted Appellant's Guilty Plea Appellant first argues that the trial court violat......
  • Meece v. Commonwealth, 2006-SC-000881-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • June 16, 2011
    ...application of the law to the established facts to determine whether its ruling was correct as a matter of law. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004).III. AnalysisA. Evidentiary Issues—Evidence Admitted at Trial1. Meece's Videotaped Statements of November 15 and December 15,......
  • Carolina v. Commonwealth, No. 2011–SC–000271–DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • April 25, 2013
    ...KRS 600.020(48). 5.Herring v. United States, 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). 6. In Welch v. Commonwealth, 149 S.W.3d 407, 411–12 (Ky.2004), this Court ordered the suppression of a juvenile's confession. Welch, however does not conflict with the view I herein espous......
  • Dunlap v. Commonwealth, No. 2010–SC–000226–MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • February 20, 2014
    ...application of the law to the established facts to determine whether its ruling was correct as a matter of law. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.2004).III. ANALYSIS.A. The Trial Court Properly Accepted Appellant's Guilty Plea. Appellant first argues that the trial court violat......
  • Request a trial to view additional results

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