Commonwealth v. Cooper , 899 S.W.2d 75 ( 1995 )

LEIBSON, Justice,

dissenting.

Respectfully, I dissent.

This Court has relied on Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), which is not and should not be considered dispositive of the issues in this case. Colorado v. Connelly is factually inap-posite in critical particulars. Further, as I will document, it turns on different constitutional principles than those that should control our decision here. If the only value our forbearers intended to constitutionalize by the privilege against compulsory self-incrimination was to deter oppressive police activity, it would be proper to confine the privilege to the activities of public officials, and to confine our discussion to standards that would be appropriate in deciding when police activity is so oppressive self-incriminating statements should be suppressed. But once we recognize that the primary purpose of this inalienable right was not to deter police activity but to establish standards of decency and respect for human dignity that must not be transgressed in a free society, we must conclude the purpose of this constitutional clause is to deny the use of coerced confessions from whatever source, whether public or private: whether the sheriff, the church inquisitor, the local lynch mob, or rampaging vigilantes. The problem with the Majority Opinion is that we have failed to recognize that the privilege is there, whether the coercion is public or private, but different limitations apply to what activities can be tolerated from the police before evidence should be suppressed than apply where private persons are involved.

When Thomas Jefferson articulated in The Declaration of Independence that we “are endowed by [our] Creator with certain unalienable rights,” and that “to secure these rights governments are instituted among men,” when, speaking for all of us, he proclaimed, “I have sworn upon the altar of God eternal hostility against every form of tyranny of the minds of man,”¹ the scope of this vision was not limited to deterring oppressive police activity.

In Colorado v. Connelly, Connelly, on his own volition, approached a police officer on the streets of downtown Denver and stated that he had committed a murder and wanted to talk about it. He was given Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) and he then provided the details, which were later confirmed. The compulsion involved, if it should be viewed as such, was the power of his own conscience, and compulsion from a “third party5’ was involved only in the sense Connelly believed that he was following the “voice of God.” He confessed because he believed “God’s voice had told him either to confess or to commit suicide.” He questioned the right to use the confession because he had had psychiatric problems which, he claimed, interfered with the exercise of his own free will. It takes no stretch of the imagination to conclude that this is not the situation our constitutional forbearers, state and federal (and I perceive no difference in this respect), had in mind when they consti-tutionalized the privilege against compulsory self-incrimination. In Colorado v. Connelly it would have been enough to hold that one’s own psyche cannot unconstitutionally compel his confession. But Chief Justice Rehnquist’s opinion in Colorado v. Connelly goes further to generalize that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” 479 U.S. at 166, 107 S.Ct. at 522, 93 L.Ed.2d at 483. He states:

The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause. 479 U.S. at 166, 107 S.Ct. at 521, 93 L.Ed.2d at 483.

This has been misperceived as authority that the citizen’s right to constitutional protection against compulsory self-incrimination does not extend to “outrageous behavior by a private party.” Actually the opinion simply restates the longstanding principle that rights guaranteed by the Federal Constitution only apply in state prosecutions through the Fourteenth Amendment, which requires that “state action” be involved in the violation of such rights. All that Colorado v. Connelly really holds is that unless there is state action there is no federal question. Other language in the opinion that has been read to suggest that the scope of constitutional protection against the use of coerced confessions is limited to the activities of governmental officials, and suggesting there is historical precedent for refusing to apply it to the coercive activities of private parties, however outrageous, is simply a failed constitutional analysis.

Far more persuasive than Chief Justice Rehnquist’s brief and undocumented generalizations in Colorada v. Connelly about the background of the Fifth Amendment’s self-incrimination clause are the numerous opinions of sister states with constitutional clauses similar to our own applying protection to confessions coerced by private persons. See cases cited in the Appellee’s Brief, pp. 17-19. A few in particular that I would urge my colleagues to consider are Fisher v. State, 145 Miss. 116, 110 So. 361 (1926); Lawton v. State, 152 FI. 821, 13 So.2d 211 (1943); and State v. Bowe, 77 Hawaii 51, 881 P.2d 538 (1994).

Recognizing there must be some reasonable limits on the length of this dissent, I will limit my discussion to just a few of the historical resources refuting this failed constitutional analysis of the self-incrimination privilege. An excellent discussion is found in Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va.L.Rev. 763 (1935), which includes this quote from English History found in the “Case of the Army [‘Cromwell’s Army] Truly Stated” (1647):

That it be declared that no person or court shall have power or be permitted to enforce any person to ... answer to any Interrogatories against himself in any criminal cause. Id. at 773. (Emphasis added.)

Another excellent source is a lengthy article found in the Harvard Law Review, Developments in the Law — Confessions, 79 Harv. L.Rev. 935-1120, see “Voluntariness”, pp. 954-84, which, inter alia, discusses the appropriate rule where pressure to confess comes from the employer as a “person in authority” (our present problem), and then concludes:

A confession obtained by threats and beatings is, of course, inadmissible without reference to the ‘authority1 of the assailant. Id. at 958.

To quote from a recent publication in the Harvard Law Review, Right Against Self-Incrimination — Involuntary Confessions, 101 Harv.L.Rev. 179 (1987), citing supporting eases and authorities:

The privilege against self-incrimination ... is founded on perhaps the most basic constitutional value, “the respect a government — state or federal — must accord to the dignity and integrity of its citizens.” However, any person who coerces a confession necessarily violates a suspect’s dignity by overriding his free will, and the state participates in that violation by allowing coerced statements to be used as evidence. Therefore, admitting coerced confessions, no matter who coerced them, is fundamentally unfair.

Admitting confessions coerced by third parties is also contrary to precedent. Both state and federal courts have ruled that confessions coerced by private parties or foreign policemen are inadmissible, and the Supreme Court itself excluded a confession coerced by a foreign policeman in Bram v. United States [168 U.S. 532, 18 S.Ct. 188, 42 L.Ed. 568 (1897) ]. Id. [168 U.S. at 54(M5,18 S.Ct.] at 186-87. (Citations omitted.)

As stated by Justice Brennan in his dissenting opinion in Colorado v. Connelly:

This Court’s assertion that we would be required “to establish a brand new constitutional right” to recognize the respondent’s claim, [citation omitted], ignores 200 years of constitutional jurisprudence. 479 U.S. at 176, 107 S.Ct. at 526-27, 93 L.Ed.2d at 490.

Justice Brennan cites, inter alia, “W. Hawkins, Pleas of the Crown (6th ed 1787): ‘[a] confession, therefore, whether made upon an official examination or in discourse with private persons, which is obtained from a defendant ... is not admissible evidence; for the law will not suffer a prisoner to be made the deluded instrument of his own conviction.’ ” Id.

Our state constitutional clause protecting against compulsory self-incrimination is drawn from a common law heritage and the text of other state constitutions, not the federal Bill of Rights. See Gormley and Hartman, The Kentucky Bill of Rights: A Bicentennial Celebration, 80 Ky.L.J. 1 (1990-91). But textual differences between the federal and state constitutions is not the issue here. There is no less reason why in a federal prosecution the confession should not be suppressed if coerced by private persons by physical abuse or intimidation than in a state prosecution. I fully agree that Miranda should not apply to cases involving the activities of private persons, and that cases involving only persuasion or inducement to confess by private persons, even if there is an element of deception, do not fall within the privilege. But historical precedent for federal as well as state constitutional law calls for suppression when truly the accused has been coerced into confessing.

Our Majority Opinion quotes from Newman v. Stinson, Ky., 489 S.W.2d 826 (1972). The case holds parallel interpretation of the state and federal clauses was appropriate for the issue presented. But the quote is out of context. Newman v. Stinson holds, quite simply, that requiring a breathalyzer and using evidence of refusal is non-testimonial in nature, and that this is not covered by either the Fifth Amendment or Section Eleven. The decision in Newman v. Stinson is beside the point.

It is important to understand why the United States Supreme Court has held that state action is required before Fifth Amendment protection applies in state cases. It is because the Fifth Amendment applies to state prosecution only because of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). It is the Fourteenth Amendment that requires state actors, not the Fifth Amendment. However, the question before us is not what the United States Supreme Court would say if asked to decide whether Cooper was protected by the Federal Constitution against the use of his statements. It is whether the law of our state, Kentucky, as expressed in the constitutional mandate in Section Eleven of the Kentucky Constitution and our cases interpreting Kentucky’s self-incrimination privilege, is limited to official misconduct or extends to intolerable behavior used by private persons to extract a confession.

Clearly, it does. Given evidence a confession is coerced, our Kentucky Constitution, Section Eleven, since 1792 and independent of the Federal Constitution, requires it should be suppressed,² and this principle is not limited: it extends to voluntary inquisitions in which no state action is implicated in appropriate circumstances. The four seminal cases in Kentucky cited in the Majority Opinion are more than enough to compel this conclusion: Young v. Commonwealth, 71 Ky. (8 Bush.) 366 (1872); Rector v. Commonwealth, 80 Ky. 468 (1882); Renaker v. Commonwealth, 172 Ky. 714, 189 S.W. 928 (1916); and Baughman v. Commonwealth, 206 Ky. 441, 267 S.W. 231 (1924). The Majority Opinion states that in Baughman v. Commonwealth our Court

... noted that in English history, torture had been administered to extract confessions by duly constituted officers and by ecclesiastical and other voluntary inquisitors. As a result, the [Baughman] Court wrote, a modern rule emerged excluding confessions obtained by duress, coercion, threat, promise of award or other unlawful means. The theory was that because of the unlawful means, the confession might be false. Such confessions were also to be excluded as a means of judicial condemnation of inhumane methods. (Majority Op., p. 79, emphasis added.)

Yet the Majority Opinion has concluded that Section Eleven does not apply unless official misconduct is involved. This decision is refuted by the cases it cites.

No doubt recognizing the enormity of denying protection against the coercive activities of private persons in all circumstances, no matter how coercive, the Majority softens the denial of the constitutional privilege by advising the accused to look for help to other rules of evidence, specifically KRE 401 and 403. Majority Op., p. 79. Rule 401 and 403 address excluding evidence because it is either irrelevant or is not sufficiently probative of the issues presented. But a coerced confession is both highly relevant and extremely probative of the guilt of the accused, and the method by which it is obtained makes it no less so. Had the evidence here been that the appellee was brutally beaten by his UPS supervisors to force him to give evidence against himself, the evidence would have been no less relevant and probative. And while such methods sometimes raise questions of credibility, credibility is not grounds for exclusion, but an issue for the jury who hears the confession, and the use of force will not affect credibility where there are corroborating circumstances. KRE 401 and 403 are not viable alternatives for the constitutional right to be protected here, the privilege against the use of coerced self-incrimination whether the confession is extracted by public officials or voluntary inquisitors. It only confuses the law of evidence to suggest otherwise.

A trial is a search of the truth. The rules of evidence are an attempt to construct neutral principles to arrive at the truth. Rare indeed is there a reason strong enough to override this principle. But suppressing self-incriminating evidence coerced from an accused is one of those rare instances developed in our law where suppressing the means used for obtaining the evidence is more important than the search for the truth. That is why, as illustrated by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), when the proof is clear that the evidence has been coerced, truth is not to be considered.

The aim of the requirement of due process [in suppressing coerced confessions] is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false. Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289-90, 86 L.Ed. 166 (1941).

The arena where it matters whether the confession has been extracted through misconduct of public officials or the activities of private actors is where it comes to deciding what set of circumstances call for applying the constitutional principle. It is here that, quite properly, over time we have evolved higher and different standards in judging whether to suppress for police activity than the standards that are suitable in judging the inducements used by private persons to extract self-incriminating statements. For instance, promises not to prosecute made by private persons who cannot speak for the government ordinarily do not constitute circumstances that require constitutional protection. Nor does the threat to withhold helping the accused make bond (Peek v. Commonwealth, Ky., 415 S.W.2d 854 (1967)). What has that to do with cases involving pressure from those in authority with power to command compliance, whether public or private, or lynch mobs applying force or duress, or private persons who confine and mistreat the accused until he confesses? The constitutional principle applies to the action of these volunteers as clearly as it does to those involved in state action. How can we think otherwise?

The real problem -with this case is not whether there is no self-incrimination privilege. It is whether or not the circumstances involved here are such that the privilege should apply, and the evidence should be suppressed. In resolving this problem, how the United States Supreme Court might decide to interpret the Fifth Amendment, or to apply it in state prosecutions covered by the Due Process Clause, is useful in interpreting our own Kentucky constitutional protection only where the federal case is persuasive. And Colorado v. Connelly is certainly not persuasive where confessions coerced by private persons are concerned. There is no reason to abandon or discard our Kentucky constitutional protection and the language of our own precedents because the United States Supreme Court might hold differently. Further, there is really no good reason why the United States Supreme Court would interpret Fifth Amendment protection inapplicable to a federal prosecution in circumstances, unlike Colorado v. Connelly, where there is proof of intimidation used by private persons to compel a confession. Comparing the language applied to the situation presented in Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936), one would conclude otherwise.

It is obvious that the Majority on this Court is persuaded that the trial court erred in deciding the particular pressures applied to this defendant to obtain his self-incriminating statements were not so compelling, or so improperly coercive, that the statements should have been suppressed. This is not a case where UPS security guards used brute force to extract the self-incriminating statements, and while there were strong inducements used to persuade the appellant to confess, the question of whether they were so strong as to trigger constitutional protection is a difficult one.

Had the Majority Opinion decided that, given the facts of this case as the trial court found them, they were insufficient to trigger the protection against self-incrimination in Section Eleven, it would be a judgment call. I might disagree but it would be a difficult decision with which to disagree. This Court may well have concluded as a matter of law that the pressure and inducements used here by private persons, even considering the pressure inherent from the circumstances of employment, did not constitute the kind of improper coercion our Kentucky Constitution requires to render a confession inadmissible, using the example provided by Peek v. Commonwealth, supra, as a relevant precedent.

Had the Majority Opinion decided the evidence was insufficient to support the trial court’s findings of fact as to what occurred by way of coercing the defendant to confess, this again might be an area where judicial minds might reasonably disagree. The trial court’s version of the facts relies heavily on the defendant’s testimony. Since credibility falls within the province of the trial court, I would probably, somewhat reluctantly, leave the facts as the trial court found them. Nevertheless, I could well understand had the Majority reached this result. But the one totally unacceptable answer is to use this case to reject, totally, constitutional protection for the accused simply because a confession is forced from the lips of the accused by private persons.

When in the future a law professor will need a case to illustrate how “hard cases made bad law,” he can cite this case. The issue should be whether the constitutional principle should apply to the methods used here by UPS personnel to induce Cooper to confess, not whether we have a clause in our Kentucky Constitution protecting our citizens against compulsory self-incrimination, whether from public officials or private oppressors.

The privilege against compulsory self-incrimination extends to voluntary inquisitions in which no state action is implicated when the coercive interrogation is conducted by persons reasonably appearing to the accused as “having him in duress or having authority over him.” Renaker v. Commonwealth, 172 Ky. 714, 189 S.W. 928, 932 (1916). The historical understanding of how Kentucky interprets our protection against self-incrimination is thus stated in Young v. Commonwealth, 71 Ky. (8 Bush) 366, 370 (1872):

“The general doctrine is indisputable, that confessions which are ‘forced from the mind by the flattery of hope or the torture of fear’ are considered as made under mental duress, and therefore incompetent as evidence; but whether they are so extorted must depend on the character of the authority, power or influence by which they are induced. Id. Emphasis added.

To deny Section Eleven protection unless there is misconduct by public officials is to lose sight of its historical underpinnings, to lose sight of the reasons why we have this self-incrimination clause in our Kentucky Constitution. Further, to relegate protection of the accused in these circumstances to rulings the trial court might consider under KRE 401 or KRE 403 is an error of monumental proportions.

Therefore, I dissent.

STEPHENS, C.J., and STUMBO, J., join.

1 . Letter to Dr. Benjamin Rush dated September 23, 1800.

2 . "He ['the accused'] cannot be compelled to give evidence against himself,_” Ky. Const., Section 11.