Appellant, Garrett Thomas Dye, pled guilty to Murder, Resisting Arrest, and Tampering with Physical Evidence. For these crimes, the Todd Circuit Court sentenced him to a total of fifty years' imprisonment. He now appeals as a matter of right, Ky. Const. § 110(2)(b), arguing that (1) his confession was coerced, (2) he did not knowingly and intelligently waive his Miranda rights, and (3) he unequivocally invoked his right to counsel. Additionally, he argues that all evidence seized pursuant to information obtained from his confession must be suppressed as "fruit of the poisonous tree." Because we conclude that Appellant's confession was involuntary, we now reverse and remand for further proceedings.
On the evening of February 4, 2011, Appellant's nine-year-old sister went missing after spending that afternoon with Appellant shoveling gravel in their driveway. Appellant's parents notified the Todd County Sheriff's Department of her disappearance, and just after midnight on February 5, 2011, the girl's dead body was discovered in a thicket about 100 yards from Appellant's home.
Because there were signs of blunt force trauma to the girl's head and face, a search warrant was issued that morning at 5:28 a.m. for the recovery of items from the property and its buildings potentially related to her death, including potential weapons, clothes, and shoes. Pursuant to this search warrant, a number of items were recovered from Appellant's home and surrounding property, including two shovels, various clothes, tennis shoes, and a buccal swab DNA sample from Appellant.
The same morning, Appellant and his parents were taken to the Trenton Police Station for questioning, but Appellant's father requested that Appellant, who was seventeen years old at the time, not be questioned until a lawyer could be retained on his behalf. Appellant was not questioned at that time.
The next day, law enforcement went to Appellant's home and arrested him for his sister's murder. Appellant was read his Miranda rights before being transported to the Logan County Courthouse where four officers (two at a time) took turns interrogating him for approximately two hours in the Court Designated Worker's (CDW) Office.
At trial, Appellant moved to suppress his confession on the grounds that his Miranda waiver was involuntary, his right to counsel was invoked but denied, and his confession was coerced. The trial court denied the motion on all grounds. Thereafter, Appellant pled guilty to all counts but reserved his right to appeal. The trial court sentenced him to fifty years' imprisonment for murder, twelve months for resisting arrest, and three years for tampering, all to run concurrently for a total of fifty years.
On appellate review of a trial court's denial of a motion to suppress, we generally apply the two-step process set
However, a simple application of this standard of review is insufficient in the case at bar because the trial court's findings of fact, although supported by substantial evidence in the record, are incomplete. For example, the trial court's order states that the officers told Appellant "how difficult things will be in the penitentiary." What the order omits, however, is the officers' actual message, i.e., that if Appellant did not confess he would be convicted, receive the death penalty, and be the subject of serious and repeated prison violence while awaiting execution. Thus, application of our normal standard of reviewing a ruling on a motion to suppress is inadequate here because it would require us to ignore facts relevant to the question of whether Appellant's substantial rights were violated.
Moreover, as the U.S. Supreme Court noted in Haynes v. Washington:
In Bailey v. Commonwealth, we recited the relevant law concerning involuntary confessions:
194 S.W.3d 296, 300 (Ky.2006). Additionally,
Bailey, 194 S.W.3d at 300. In Henson v. Commonwealth, we summarized the relevant inquiry as follows: "The three criteria used to assess voluntariness are 1) whether the police activity was `objectively coercive;' 2) whether the coercion overbore the will of the defendant; and 3) whether the defendant showed that the coercive police activity was the `crucial motivating factor' behind the defendant's confession." 20 S.W.3d 466, 469 (Ky.1999) (citing Morgan v. Commonwealth, 809 S.W.2d 704, 707 (Ky.1991)). We conclude that the interrogation techniques employed in this case satisfy these criteria.
First, the officers incorrectly and repeatedly informed Appellant that, if convicted, he could receive the death penalty (i.e., that he was "death eligible"). However, in Roper v. Simmons, the U.S. Supreme Court held that the Eighth and Fourteenth Amendments to the U.S. Constitution
Each death penalty reference was immediately followed by an officer asserting that the only way for Appellant to avoid execution was to confess to the murder. Perhaps the most troubling exchange between Appellant and the officers regarding the death penalty occurred about an hour into the interrogation. To this point, Appellant had not made any incriminating statements and the officers had left the room to give Appellant a break. During the break Appellant began to cry. When the officers returned to the room, the following exchange occurred:
Not only did the officer erroneously convey that Appellant was death-eligible, but also that he was certain to receive a death sentence unless he confessed to his sister's murder.
After a similar exchange, an officer told Appellant: "I hate to see you at seventeen years old go to the pen[etentiary] for the rest of your life or spend the next fifteen or twenty years of your life on death row. This is the only way you're going to avoid that." A few minutes later, an officer told Appellant: "We've put people on death row and electrocuted them with a whole lot less evidence than we got on you. I mean a whole lot less."
We hold that repeatedly threatening a seventeen-year-old with the death penalty is "objectively coercive." Henson, 20 S.W.3d at 469. The interrogating officers knew, or should have known, that Appellant was not death-eligible (1) due to his status as a juvenile, see Roper, 543 U.S. at 578, 125 S.Ct. 1183, and (2) because there was no evidence or allegation of aggravating circumstances that would have otherwise made this case death-eligible. See KRS 532.025(2). We therefore conclude that the interrogating officers' untruthful threats were improperly employed to overbear Appellant's will and critically impair his capacity for self-determination. Schneckloth, 412 U.S. at 225-26, 93 S.Ct. 2041. Thus, it is "objectively coercive." Henson, 20 S.W.3d at 469.
Later in the interview, the officers again told Appellant that unless he confessed he would be tried as an adult and incarcerated at KSP where, according to the officers, the inmates treat child murderers the same way they treat individuals convicted of a sexual crime against a child:
We will not feign ignorance to the fact that the officers were alluding to prison violence and/or rape and that is precisely how Appellant understood these comments. We hold that attempting to persuade a seventeen-year-old that a confession is the only way he will avoid daily prison assault — sexual or otherwise — is "objectively coercive." Henson, 20 S.W.3d at 469.
Finally, we find it troublesome that the officers continually dissuaded Appellant from invoking his right to counsel. Although we need not determine whether Appellant unequivocally and unambiguously invoked his right to counsel, or whether the alleged waiver of his Miranda rights was coerced, this conduct is nonetheless relevant to our "totality of the circumstances" review. See Mills, 996 S.W.2d at 481. One exchange — about eighty minutes into the interrogation, and just moments before Appellant began confessing — is particularly bothersome:
When considered in context of the entire conversation, we believe that the intended effect of this exchange (and similar exchanges) was to alert Appellant, a seventeen-year-old, that if he did invoke his right to an attorney his opportunity to confess — and thereby avoid the death penalty and prison violence — would be lost. We hold that this is "objectively coercive." Henson, 20 S.W.3d at 469.
Upon thorough review of the interrogation, we conclude that inducing Appellant to forfeit his right to counsel and provide an immediate confession by playing to his fears of death and assault overbore his will. This is most clear in the two exchanges recounted above. First, after an hour of interrogation involving substantial discussion of the death penalty and references to inter-inmate violence, the officers left the room to give Appellant a break. Predictably, he began crying and when the officers returned he immediately told them that he was scared and asked them if he was really going to receive the death penalty. About twenty minutes later, the interrogators gave Appellant an ultimatum: confess and avoid the death penalty and life on death row, or invoke his right to counsel and lose his opportunity to confess. Unsurprisingly, Appellant began confessing moments later. This is sufficient for us to conclude that the second Henson prong is satisfied.
For the same reasons as the second, the third Henson prong is satisfied: "the coercive police activity was the `crucial motivating factor' behind the defendant's confession." 20 S.W.3d at 469. While Appellant spent the hour before the break denying any involvement in his sister's murder, Appellant's attitude completely changed after the reality set in that he either confess or face death. When the officers returned to the interrogation room from the break, the first things Appellant said were "I'm scared" and "Are they going to give me the death penalty?" He was told repeatedly that (1) this was his last and only chance to confess, (2) if he did confess he could avoid the death penalty, (3) but if he did not confess he was going to be executed, and (4) he would be subject to assault while on death row. Additionally, he was told that if he invoked his right to counsel he would lose his opportunity to confess. This coercive police activity was not ancillary to the confession; it was the "crucial motivating factor." Id.
We hold that under the totality of the circumstances, Appellant's confession was not "the product of an essentially free and unconstrained choice by its maker," Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041, but rather the product of "coercive police activity," Connelly, 479 U.S. at 167, 107 S.Ct. 515. Accordingly, it must be suppressed. See, e.g., Johnson v. New Jersey, 384 U.S. 719, 729 n. 9, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) ("Coerced confessions are, of course, inadmissible regardless of their alleged truth or falsity.") (citing Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961)). "[C]ertain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment." Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (citing Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936)). As the U.S. Supreme Court explained in Schneckloth:
412 U.S. at 224-25, 93 S.Ct. 2041. Due process demands suppression.
Because we are remanding to the trial court for further proceedings, we must address Appellant's related claim: whether the evidence seized pursuant to the February 6 search warrant — which was issued upon information contained in his involuntary confession — must also be suppressed as "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). This is a question the U.S. Supreme Court has not yet answered and one that this Court has not directly addressed.
Joshua Dressier & Alan C. Michaels, Understanding Criminal Procedure: Volume
However, the Fourteenth Amendment's Due Process clause is violated by coercive police activity resulting in a confession. Miller v. Fenton, 474 U.S. at 108, 106 S.Ct. 445
For example, in California v. Ditson, the Supreme Court of California opined:
57 Cal.2d 415, 439, 20 Cal.Rptr. 165, 369 P.2d 714 (1962). We are persuaded by this analysis and now adopt it as law in Kentucky.
Apparently conceding that evidence seized under these circumstances must otherwise be suppressed, the Commonwealth argues that the evidence recovered pursuant to the February 6 search warrant is admissible under the "inevitable discovery" doctrine. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1991). In Nix, the U.S. Supreme Court held that evidence unlawfully obtained by police is nevertheless admissible "[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means...." Id. at 444, 104 S.Ct. 2501. This "doctrine has been applied to the
We believe that whether the evidence seized pursuant to the February 6 search warrant would inevitably have been discovered is a question that should initially be addressed by the trial court after an appropriate hearing on the matter.
We conclude that Appellant's confession was involuntary under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. We therefore reverse the judgment and sentence of the Todd Circuit Court and remand to that court for further proceedings consistent with this opinion.
All sitting. All concur.
The negative inference of this rule is that a court need not disregard an error or defect that does affect the substantial rights of the parties or appears to be inconsistent with substantial justice.
In contrast, the modern view is "that the due process exclusionary rule for confessions (in much the same way as the Fourth Amendment exclusionary rule for physical evidence) is also intended to deter improper police conduct." Id. at 938-43 (quoting 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.2, at 443 (1984)). Accordingly, it is unlikely that McQueen and Baughman would pass muster under the modern federal constitutional analysis applicable to coerced confessions.
However, the Fourteenth Amendment's Due Process clause is violated by coercive police activity resulting in a confession. Miller v. Fenton, 474 U.S. at 108 ("This Court has long held that certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment.") (citing Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936)). Accordingly, extending the "fruits" doctrine to the factual scenario presented by this case is not inconsistent with the plurality opinion in Patane. We also note Justice Thomas authored the previously discussed plurality opinion in Chavez, which appears to approve of applying the "fruits" doctrine to cases like the one at bar. See footnotes 7 & 8, supra, and accompanying text.
