J. THOMAS RAY, Magistrate Judge.
The following Recommended Disposition ("Recommendation") has been sent to United States District Judge James M. Moody, Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.
On September 22, 2016, a Jefferson County jury convicted Lorenzo Kellon ("Kellon") of capital murder and aggravated robbery for killing a Pine Bluff convenience store clerk and then stealing $550 from the cash register. Kellon v. State, Jefferson County Cir. Ct. Case No. 35CR-15-448; Sentencing Order, Doc. 9-2 at 1. Kellon was sentenced to life, without parole, for capital murder;
On direct appeal to the Arkansas Supreme Court, Kellon argued the trial court erred in: (1) refusing to suppress his confession; (2) refusing to accept his proposed modifications to the jury instructions; and (3) giving an erroneous and prejudicial jury instruction on capital felony murder, with the lesser-included offense of first-degree felony murder. Appellant's Brief, Doc. 9-3. On February 15, 2018, the Court rejected Kellon's arguments and affirmed his convictions. Kellon v. State, 2018 Ark. 46, at 1, 538 S.W.3d 206, 207 (2018).
Kellon did not file a Rule 37 Petition.
On June 26, 2018, Kellon initiated this § 2254 habeas action. Doc. 1. Liberally construing his habeas Petition, he makes the following claims:
In Respondent's Response, he argues that Kellon's habeas Petition should be dismissed because: (1) he procedurally defaulted Claims 1 through 4;
For the reasons explained below, the Court recommends that all of the claims asserted in this § 2254 habeas Petition be denied and the case be dismissed, with prejudice.
Before addressing Kellon's habeas claims, it is important to understand the evidence supporting Kellon's capital murder and aggravated robbery convictions.
Shortly before 8:30 p.m. on June 22, 2015, Kellon drove into the parking lot of the Big Red convenience store on East Harding Street in Pine Bluff, Arkansas. Surveillance Camera 1 at 19:20:44. He was driving a bronze-colored four-door Cadillac sedan, which he parked by one of the gas pumps. Id. Kellon's passenger, Sha'Quille Carter,
Kellon then exited the car, holding a pistol and wearing a silver mask, with a black hood. Surveillance Camera 1 at 19:25:09. He walked from the car to the side of the store where one of the store clerks, Hardip Singh, was smoking a cigarette, and shot him three times. Id. at 19:25:09-19:25:19. One bullet struck Singh in the head, one grazed his cheek, and the other hit him in the back. Trial Testimony of Dr. Charles Kokes from the Arkansas State Crime Lab, Tr. Trans. Vol. 4 at 1071. Singh died where he fell.
The other store clerk was stocking items in the back of the store when he heard gun shots and ducked down behind an aisle. He remained there throughout the robbery. Surveillance Camera 7 at 19:25:22-19:26:07.
Kellon entered the store, opened the cash drawer, and stole approximately $550. Surveillance Camera 6 at 19:25:21-19:25:53. He then walked back to the Cadillac and drove away. Surveillance Camera 1 at 19:25:53-19:26:07.
The next day, a Pine Bluff police officer saw a bronze-colored Cadillac parked outside a different convenience store in Pine Bluff. Trial Testimony of Officer Jason Howard, Tr. Trans. Vol. 4 at 1111. A male exited the store and walked back to the car. Id. at 1112-1115. The officer followed the car to an abandoned house, reported his position, and requested backup. Other officers arrived, who took Kellon into custody and drove him to the Pine Bluff Police Department.
After being advised of his Miranda rights, two detectives questioned Kellon. Trial Testimony of Detective Cassandra McAfee, Tr. Trans. Vol. 5 at 1242-1245. Twenty minutes into their questioning, Kellon confessed to killing Singh and robbing the convenience store. Id. at 1274-1276; Kellon Statement 1.
A habeas petitioner must first "fairly present" his claims in state court before seeking § 2254 relief in federal court. Murphy v. King, 652 F.3d 845, 848-49 (8th Cir. 2011); 28 U.S.C. § 2254(b)(1)(A) ("An application for a writ of habeas corpus . . . shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State[.]"). A petitioner must present the substance of his federal habeas claim not only in the state trial court, but also in "one complete round of the State's established appellate review process." Murphy, 652 F.3d at 848-49; Grass v. Reitz, 643 F.3d 579, 584-85 (8th Cir. 2011).
By exhausting all available state court remedies, a habeas petitioner gives the State that convicted him an "`opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam). When a petitioner fails to fully exhaust his claims in state court and the time for doing so has expired, his claims are procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
Because Kellon did not raise the issue of the trial court's alleged lack of jurisdiction based on inadequacies in the criminal information, either at trial or on direct appeal, he procedurally defaulted Claim 1. See Beaulieu v. Minnesota, 583 F.3d 570, 574 (8th Cir. 2009) (holding that petitioner procedurally defaulted his jurisdictional claim by failing to raise it with Minnesota state courts); Smith v. State, 2016 Ark. 201, 4, 491 S.W.3d 463, 466 (2016) (even if an information were insufficient, the jurisdiction of the trial court would not be implicated); Jones v. State, 2009 Ark. 308 (2009) (the insufficiency of an information must be challenged prior to trial or any constitutional basis for appellate review will be waived). Thus, Kellon is now attempting to raise Claim 1 for the first time in this federal habeas action.
Similarly, Claim 3 is procedurally defaulted because, although Kellon's trial attorney moved for directed verdict, based on insufficiency of the evidence, he failed to raise that argument on direct appeal. Kellon, 2018 Ark. 46, 538 S.W.3d 206. See Mills v. State, 2010 Ark. 390, at *1, 2010 WL 4156339 (Ark.) (challenges to the sufficiency of the evidence must be raised on direct appeal).
Finally, Claims 2 and 4 raise ineffective assistance of trial counsel claims, which Kellon was required to raise with the trial court, in a Rule 37 Petition, and then appeal to the Arkansas Supreme Court. Armstrong v. Iowa, 418 F.3d 924, 925-26 (8th Cir. 2005). Because Kellon did not file a Rule 37 Petition and the time for doing so has long since passed,
When a procedural default occurs, federal habeas review of the claim is barred unless the prisoner can demonstrate: (1) "cause" for the default and "actual prejudice" resulting from the alleged violation of federal law;
As "cause" to excuse his procedural default of Claim 1, Kellon blames his attorney for failing to file a motion to dismiss or otherwise challenging the jurisdiction of the trial court based on the alleged inadequacies in the criminal information. Doc. 1 at 16, 19. Similarly, Kellon tries to excuse his procedural default of Claim 3 by blaming his attorney for failing to make a proper motion for directed verdict to preserve the argument that the evidence was not sufficient to support his convictions for capital murder and aggravated robbery. Id. at 31-33.
While ineffective assistance of trial counsel may constitute "cause" to excuse a procedural default, such a claim must first be raised in state court. See Edwards v. Carpenter, 529 U.S. 446, 450-53 (2000). Under Arkansas law, ineffective assistance of trial counsel claims must be raised in a timely Rule 37 Petition. Wooten v. State, 2018 Ark. 198, at 3, 547 S.W.3d 683, 685 (2018). After his direct appeal was affirmed by the Arkansas Supreme Court, Kellon did not file a Rule 37 Petition. Accordingly, his trial attorney's alleged ineffectiveness cannot constitute "cause" to excuse his procedural default of Claims 1 and 3, based on his own failure to file a Rule 37 Petition. Edwards, 529 U.S. at 450-454.
Finally, Kellon argues that the trial court's failure to inform him of his post-trial rights
First, the state trial court explicitly advised Kellon of his right to direct appeal:
Doc. 31, Trial Trans. Vol. 7 at 1588-1589.
Second, a state trial court is not constitutionally obligated to inform a defendant of his post-conviction rights.
Furthermore, it is well-settled that a habeas petitioner's procedural ignorance, without more, cannot establish the necessary "cause" to excuse the procedural default of a federal habeas claim. Townsell v. Kelley, 678 F. App'x 458, 459 (8th Cir. 2017) (unpublished); United States v. Shoupe, 299 F. App'x 610, 611 (8th Cir. 2008) (unpublished) (citing Smittie v. Lockhart, 843 F.2d 295, 298 (8th Cir.1988) (petitioner's pro se status and limited educational background are not sufficient cause for failing to pursue state-court remedies); Sherron v. Norris, 69 F.3d 285, 289 (8th Cir. 1995); Cornman v. Armontrout, 959 F.2d 727, 729 (8th Cir. 1992).
Accordingly, because Kellon has procedurally defaulted Claims 1 through 4, the Court should not consider them and those claims should be dismissed, with prejudice.
Kellon argues that the trial court erred in overruling his objection to the jury instruction on Capital Felony Murder/First-Degree Felony Murder, Arkansas Model Criminal Instruction ("AMCI") 301. Specifically, Kellon argues this instruction "prevented" the jury from convicting him of the lesser-included offense of first-degree felony murder. Doc. 12 at 6. Respondent argues the Arkansas Supreme Court reasonably determined, under Arkansas law, that the jury instruction claim lacked merit. Doc. 9 at 7.
A federal habeas court cannot grant relief on a claim adjudicated on the merits by a state court unless a state court's decision "was contrary to, or involved an unreasonable application of, clearly established federal law" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). A state court decision is "contrary to" clearly established federal law if it is in conflict with a decision of the United States Supreme Court on a question of law, or reaches a result that is contrary a decision of the United States Supreme Court on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision involves an "unreasonable application" of federal law when it identifies the correct legal rule, but unreasonably applies it to the facts. Id. at 407. "A state court's application of clearly established federal law must be objectively unreasonable, not merely incorrect, to warrant the granting of a writ of habeas corpus." Jackson v. Norris, 651 F.3d 923, 925 (8th Cir. 2011).
Finally, in a federal action, a state court's findings of fact are presumptively correct and the habeas petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." Stenhouse v. Hobbs, 631 F.3d 888, 891 (8th Cir. 2011) (quoting 28 U.S.C. § 2254(e)(1)).
Under Arkansas law, when capital felony murder is charged, an instruction on first-degree felony murder, as a lesser-included offense, is also required because "the same evidence used to prove the former of necessity proves the latter." Hill v. State, 303 Ark. 462, 469, 798 S.W.2d 65, 69 (1990). A person commits capital murder if "the person commits . . . aggravated robbery . . . and . . . [i]n the course of and in furtherance of the [aggravated robbery], . . . the person . . . causes the death of a person under circumstances manifesting extreme indifference to human life." Ark. Code. Ann. §§ 5-10-101. Similarly, a person commits first-degree felony murder if "the person commits . . . a felony [including aggravated robbery] and in the course of or in furtherance of the felony[,] . . . the person . . . causes the death of any person under circumstances manifesting extreme indifference to the value of human life." Ark. Code Ann. § 5-10-102. The penalty for capital felony murder is either death or life without parole. Ark. Code Ann. § 5-10-101(c)(1). The penalty for first-degree felony murder is not less than 10 years, nor more than 40 years, or life. Ark. Code Ann. §§ 5-10-102(c)(1); 5-4-401(a)(1). Because the state waived the death penalty prior to trial, Kellon faced a mandatory sentence of life, without parole, on the capital felony murder charge. On the lesser-included offense of first-degree felony murder, he faced a potentially much shorter sentence.
At trial, Kellon's attorney generally objected to the court's jury instructions on capital felony murder/first-degree felony murder, which tracked the Arkansas Model Criminal Instructions; offered modifications to those instructions; and specifically objected to AMCI 2d 301 and 302, which he claimed made it impossible for the jury to convict Kellon of the lesser-included offense of first-degree felony murder, without first considering and acquitting him of capital felony murder. Tr. Trans. Vol. 6 at 1391-1392. The trial court overruled these objections, as modified by Kellon's attorney.
The jury instructions, as given by the trial court, are set forth below:
Tr. Trans. Vol. 6 at 1417-1421.
Importantly, as part of its overall instructions, the trial court told the jury to "accept and follow [the instructions] as a whole, not singling out one instruction to the exclusion of others." Tr. Trans. Vol. 6 at 1412.
On direct appeal, Kellon's attorney renewed his challenge to the capital felony murder/first-degree felony murder jury instructions. The Arkansas Supreme Court rejected this argument and affirmed the trial court's use of the model jury instructions, including AMCI 2d 301 and 302, which specifically addressed how the jury should consider the capital murder charge and lesser-included offense of first-degree felony murder.
Justice Wynne filed a concurring opinion, and Justice Hart filed a dissent. Kellon, 2018 Ark. 46, at 6-8, 538 S.W.3d at 209-211 (Wynne, J., concurring, and Hart, J., dissenting). According to both of those Justices, Kellon's jury instruction challenge was distinguishable from the one involved in Hill.
In her dissent, Justice Hart concluded that Kellon's proposed jury instructions "were reasonable and . . . the trial court failed to give them due consideration, and . . . this error was extremely prejudicial to Kellon's rights[.]" Id. Accordingly, Justice Hart believed Kellon's conviction should be overturned and he should be given a new trial. Justice Wynne, in his concurrence, was unwilling to go that far. He believed the purported ambiguities in the model instructions did not support the reversal of Kellon's convictions, but were something that "the Committee on Criminal Jury Instructions should consider revising[.]" Id.
In Williams v. Norris, 576 F.3d 850 (8th Cir. 2009), the Court held that, while the Arkansas capital felony murder and first-degree felony murder statutes impose different penalties for the same act, together they do not offend due process because each statute unambiguously specifies the conduct prohibited and the penalties authorized upon conviction, thereby satisfying the fair notice requirements of the due process clause. Id. at 869 (citing Simpson v. Lockhart, 942 F.2d 493 (8th Cir. 1991)). In considering Kellon's constitutional challenge to the AMCI instruction for capital felony murder, with first-degree felony murder as a lesser-included offense, it is important to note that the Eighth Circuit has held an error in a jury instruction can only rise to the level of a due process violation if it is sufficiently egregious. See Robinson v. LaFluer, 225 F.3d 950, 954 (8th Cir. 2000) ("Habeas corpus relief may be granted only when an erroneous jury instruction constituted a fundamental defect that resulted in a complete miscarriage of justice, or an omission inconsistent with rudimentary demands of a fair trial.").
Kellon argues the jury instructions given by the trial court resulted in a complete miscarriage of justice because they required the jury to first acquit him of capital felony murder before they could consider the lesser-included offense of first-degree felony murder. Doc. 12 at 6. For the reasons explained below, the Court concludes this argument is without merit.
In AMCI 2d 302, the jury was explicitly instructed that, if it had "reasonable doubt" about whether Kellon committed capital murder, it could consider whether Kellon was guilty of the lesser-included offense of first-degree felony murder. See Blueford v. Arkansas, 566 U.S. 599 (2012) (the jury is always free to reconsider its determination on any charge while deliberations are ongoing). This instruction allowed any juror, who had reasonable doubt about whether Kellon committed capital murder, to open the floor for a discussion about whether Kellon was guilty of the lesser-included offense of first-degree murder. Fairly read, it is at best disingenuous for Kellon to argue this instruction meant the jury was required to vote to acquit him of capital murder before it could consider the lesser-included offense.
Finally, Kellon's jury instruction claim fails for a far more fundamental reason: the Eighth Circuit has explicitly held that a habeas petitioner has no due process right to even claim he was entitled to the lesser-included offense instruction unless he was being tried in a capital case. See Carney v. Fabian, 487 F.3d 1094, 1097 (8th Cir. 2007) ("There is no constitutional requirement that lesser-included offense instructions be given in noncapital cases.").
The Arkansas Supreme Court's rejection of Kellon's challenge to the jury instructions, on direct appeal, Kellon, 2018 Ark. 46, at 6, 538 S.W.3d at 209, was not contrary to, or an unreasonable application of, "clearly established Federal law." Additionally, the jury instructions challenged by Kellon in his habeas Petition do not implicate or support a claim that his due process rights were violated. Accordingly, the Court concludes that Claim 5 is without merit and should be dismissed, with prejudice.
Kellon argues that his confession was involuntary because it was made based on: (1) false promises of "favor and benefit" by the two detectives conducting his custodial interrogation; and (2) the detectives exploited his vulnerability, i.e., his mental condition at the time of questioning and inexperience with interrogations. Doc. 12 at 6. Respondent argues this claim is without merit and that the Arkansas Supreme Court's decision rejecting this claim was reasonable. Doc. 9 at 7.
Prior to trial, the court held an evidentiary hearing on Kellon's motion to suppress his confession. Tr. Trans. Vol. 2 at 405-524. After hearing evidence, the court concluded that Kellon's confession was knowing and voluntary. In support of its decision, the court made the following specific findings: (1) Kellon was properly warned of his Miranda rights and understood them; (2) Kellon responded appropriately to the questions, rarely requested clarification of the questions, and rarely asked for questions to be repeated; (3) during the interrogation, Kellon remembered details of the crime that were consistent with the surveillance video; (4) although Kellon did not articulate very well during the interrogation, he did not slur or drag his speech;
On direct appeal, the Arkansas Supreme Court affirmed the trial court's ruling that Kellon's confession was voluntary:
Kellon v. State, 2018 Ark. 46, 1-4, 538 S.W.3d 206, 207-208.
Whether a confession is involuntary, and thus inadmissible at trial, is judged by the totality of the circumstances, including the specific interrogation tactics employed, the details of the interrogation, the age of the defendant, his level of education and intelligence, and the duration of the questioning. Battle v. Delo, 19 F.3d 1547, 1563 (8th Cir. 1994) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 225-226 (1973)). However, the ultimate test is whether the confession was "the product of an essentially free and unconstrained choice by its maker" or whether "his will has been overborne and his capacity for self-determination critically impaired." Schneckloth, 412 U.S. at 225-226.
The "totality of the circumstances" standard recited and applied by the Arkansas Supreme Court, under Arkansas law, is consistent with controlling decisions by the United States Supreme Court, which means it was not "contrary to" applicable federal law under § 2254(d)(1). See Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (it is not necessary for the state court to cite, or even be aware of, applicable United States Supreme Court opinions, as long as "neither the reasoning nor the result of the state-court decision contradicts them"). With regard to findings of fact made or adopted by the Arkansas Supreme Court on direct appeal, Kellon must demonstrate "by clear and convincing evidence that the state court's presumptively correct factual findings do not enjoy support in the record." Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003).
The Court has reviewed the audio recording of Kellon's interrogation and the record of the suppression hearing. Importantly, Kellon, a 23 year-old adult, was appropriately warned of his Miranda rights immediately before the detectives questioned him.
Furthermore, Kellon's confession did not come at the end of an extended, high pressure interrogation. Rather, less than twenty minutes after receiving his Miranda warnings, Kellon confessed to murdering Singh and robbing the Big Red convenience store and did so in detail, without suggestive questions or any explicit promises by the two detectives questioning him:
Kellon Statement 1 at 21:28-24:01.
In the short time before obtaining Kellon's confession, both Detective McAfee and Detective Freeman used sympathy and understanding as an interrogation technique. However, neither detective resorted to any threats of physical violence, intimidation, trickery, or promises to exercise official authority prior to Kellon's confession to the murder and robbery.
Kellon characterizes the following statements by the detectives as "promises of favor or benefit":
Doc. 12 at 2. However, the Arkansas Supreme Court specifically addressed those statements by the detectives and reasonably concluded they were ambiguous, at best, and "more general exhortations to be truthful for the sake of Kellon's own conscience than as promises to exercise official authority." Kellon, 2018 Ark. 46, at 4, 538 S.W.3d at 208.
Moreover, those statements, whether viewed in isolation or in context, do not compel the conclusion that Kellon's confession was involuntary. See United States v. Astello, 241 F.3d 965 (8th Cir. 2001) (confession of an 18 year-old defendant, who ultimately received a life sentence, held voluntary despite three-hour interrogation in which law enforcement officials implied that he would receive a sentence of less than life for telling the truth); see also U.S. v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995) (promise of leniency does not necessarily make a statement involuntary); Sumpter v. Nix, 863 F.2d 563, 565 (8th Cir. 1988) (confession was voluntary despite allegations that interrogators made implied promises of leniency).
Kellon's remaining allegations relating to "promises of favor or benefit" by the detectives do not affect the voluntariness of his confession because the record conclusively demonstrates that those statements could have only occurred after he had already confessed to the murder and robbery.
Finally, Kellon claims vulnerability based on his "emotional state" and lack of prior experience with the criminal system. While those are relevant factors to consider in determining the voluntariness of a confession, neither factor is dispositive. See LaRette v. Delo, 44 F.3d 681, 688-689 (8th Cir. 1995).
After Detective McAfee read Kellon his Miranda warnings, she asked if Kellon was feeling okay, and he responded, "not really." She then asked, "Is there anything wrong . . . with you or . . . are you medically ill, anything of that nature?" He responded that "nobody ever told me I was, but I do feel like I got problems in the back of my head." Kellon Statement 1, 2:25-2:50. Kellon never elaborated any further on the point. During the interview, Kellon was understandably emotional, given the seriousness of his crimes, and spoke through tears at times. However, he did not cry uncontrollably or sound so overcome with emotion during his confession that he was unable to exercise his own free will.
Finally, Kellon claims his statement "confirmed that with good intentions Kellon could be induced by anyone by lack of experience or not knowing . . . [b]ecause Kellon does not articulate well on things that have been absent in his life. Only when Kellon goes through situations only then could he become familiar, then he could articulate." Doc. 12 at 6. Kellon's lack of prior experience with the criminal justice system does not move the needle on his claim of involuntariness given the state court's finding that he understood his right to remain silent and that anything he said could and would be used against him in court.
The Arkansas Supreme Court's adjudication of Claim 6 was not contrary to, or an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of the United States[,]" nor did it involve an unreasonable determination of facts in light of the state court record. 28 U.S.C. § 2254(d). Further, in his habeas papers, Kellon has not demonstrated by clear and convincing evidence that his will was overborne and his capacity for self-determination was critically impaired to such an extent that his confession was involuntary. Accordingly, Claim 6 is without merit and should be dismissed, with prejudice.
Because Kellon's habeas Petition should be dismissed, the Court further recommends that Kellon's pending Motion for Affirmative Relief (Doc. 34), Motion to Appear for Evidentiary Hearing (Doc. 36), Motion to Appoint Counsel (Doc. 37), Motion for Reconsideration (Doc. 38), and Motion for Summary Judgment (Doc. 39) should also be denied, as moot.
IT IS THEREFORE RECOMMENDED THAT:
1. This 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus, Doc. 1, be DENIED and this case be DISMISSED, WITH PREJUDICE.
2. A Certificate of Appealability be DENIED. See 28 U.S.C. § 2253(c)(1)-(2); Rule 11(a), Rules Governing § 2254 Cases in United States District Courts.
3. Kellon's Motion for Affirmative Relief (Doc. 34), Motion to Appear for Evidentiary Hearing (Doc. 36), Motion to Appoint Counsel (Doc. 37), Motion for Reconsideration (Doc. 38), and Motion for Summary Judgment (Doc. 39) all be DENIED as MOOT.
Kellon was convicted under the Arkansas capital felony murder statute, but the prosecutor had waived the death penalty. In Pitts, the prosecutor asked the jury for the death penalty, but the jury elected to give Pitts life, without parole. In his habeas Petition, Pitts argued his due process rights were violated because the trial court refused to give an instruction on the lesser-included offence of first-degree felony murder. The Eighth Circuit rejected that argument: "[T]he failure to give a lesser included offense instruction in a noncapital case rarely, if ever, presents a constitutional question[.]" Id. This means, even if the jury instruction given by the court in Kellon's trial had not included a lesser-included offense instruction on first-degree murder, it would "not rise to a level of constitutional significance" under the Court's holding in Pitts. Id.
Kellon Statement 1 at 0:50-1:52; see also, Miranda Rights Form executed by Kellon (June 23, 2015), Tr. Trans. Vol. 2 at 629.
Likewise, Kellon claims that "around the same time" he was using Detective McAfee's iPhone to help in retrieving the murder weapon, one of the detectives told him, "[i]f I could cooperate that they would tell the judge that I was truthful and possibly give me reduced charges." Id. at 503-504. Both detectives denied making such a statement, and no such statement occurred on the recordings. Id. at 412, 480. However, to the extent such a statement was made, it would have been after Kellon's confession.