Anthony Stalcup v. Commonwealth of Kentucky ( 2023 )


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  •              IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION
    THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
    PURSUANT TO THE RULES OF CIVIL PROCEDURE
    PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS
    OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
    CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
    CASE IN ANY COURT OF THIS STATE; HOWEVER,
    UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
    RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
    CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
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    BEFORE THE COURT. OPINIONS CITED FOR
    CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN
    UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A
    COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG
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    THE ACTION.
    RENDERED: AUGUST 24, 2023
    NOT TO BE PUBLISHED
    Supreme Court of Kentucky
    2021-SC-0552-MR
    ANTHONY STALCUP                                                            APPELLANT
    ON APPEAL FROM MCCRACKEN CIRCUIT COURT
    v.               HONORABLE TIMOTHY KALTENBACH, JUDGE
    NO. 19-CR-00679
    COMMONWEALTH OF KENTUCKY                                                    APPELLEE
    MEMORANDUM OPINION OF THE COURT
    AFFIRMING
    Appellant Anthony Stalcup (Stalcup) shot and killed Judy Stalcup (Judy)
    in July 2019. When the police interviewed Stalcup, he initially stated that
    Judy had shot herself, but later stated that he accidentally shot Judy. A grand
    jury indicted Stalcup for murder and possession of a handgun by a convicted
    felon. Stalcup went to trial on the murder charge and a jury found him guilty.1
    After Stalcup entered a guilty plea to being a convicted felon in possession of a
    handgun, the trial court sentenced Stalcup to a total of forty-three (43) years in
    prison. The single issue on appeal is whether the trial court erred by only
    1 The charge of being a convicted felon in possession of a handgun was severed,
    to be tried in the second phase of the trial. Stalcup entered an open plea to the
    possession charge after the jury began deliberating whether he was guilty of
    committing murder.
    partially granting Stalcup’s motion to suppress statements made to the police.
    Upon review, we affirm the trial court’s suppression order.
    FACTUAL AND PROCEDURAL BACKGROUND
    Stalcup and Judy, his ex-wife, lived together in Paducah. Aileen and
    Edwin were their next-door neighbors. Cody was another neighbor. On July 9,
    2019, the day before Judy was killed, Judy told Aileen that she was leaving
    Stalcup again. According to Cody, on that same day, Stalcup came to his
    house to “cool off.” Stalcup told Cody that he and Judy had gotten into a fight
    and that he had a gun, “but he didn’t want to go there.” Stalcup talked with
    Cody a little longer and then went home. Cody testified that Stalcup looked
    intoxicated and smelled of alcohol.
    The next day, Stalcup called Edwin and said he shot Judy. Aileen and
    Edwin went to the Stalcup residence. When Aileen and Edwin arrived, Judy
    was slumped over in a recliner. Stalcup was sitting on the couch facing the
    victim, saying, “What am I going to do?” Aileen detected a faint pulse and
    called 911. McCracken County Sheriff officers and detectives responded to the
    scene and investigated the shooting.
    When Sergeant Ray arrived at the scene, Stalcup was sitting on the
    couch talking on the phone. Sergeant Ray observed that the victim was shot
    under her right arm and detected a faint pulse. Stalcup smelled of alcohol and
    was unsteady on his feet when he was ordered to get up and to leave the
    residence. Stalcup told Sergeant Ray that the victim had shot herself and he
    didn’t know where the gun was. Pursuant to a warrant, the home was
    2
    searched, and two handguns were located. One of the handguns was found
    where Stalcup had been sitting and was wrapped in a towel.
    Detective Norman also responded to the 911 call for a possible self-
    inflicted gunshot wound. After the paramedics removed the victim from the
    home, Detective Norman asked Stalcup if he would go to the office for an
    interview. Stalcup said he would. Because Stalcup had been drinking, a
    deputy gave Stalcup a ride to the sheriff’s office.
    During the first hour of the interview, Stalcup claimed that the victim
    shot herself. During the second hour, after being read his Miranda2 rights,
    Stalcup admitted to shooting the gun but claimed he accidentally shot the
    victim. In this vein, Stalcup first stated that he was lying on the couch with a
    pillow under his head, that the gun was under it, and that he was trying to kill
    himself. However, he later stated that he was trying to scare the victim and
    that he didn’t think the bullet would hit Judy, even though she was sitting a
    foot away. Stalcup told Detective Norman where he placed the gun after he
    shot Judy.
    Stalcup moved pretrial to suppress all statements he made to police on
    or about July 10, 2019, the day of his arrest. The trial court granted Stalcup’s
    motion in part. While Stalcup argued that his Fifth Amendment rights against
    compelled self-incrimination were violated throughout the whole interview, the
    2 Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    3
    trial court concluded that Stalcup was not in custody until Detective Norman
    read Stalcup his Miranda rights, which was about an hour into the three-hour
    interview. However, after being Mirandized, Stalcup continued the interview for
    another hour before requesting an attorney.3 The trial court suppressed
    incriminating statements made by Stalcup after he invoked his right to
    counsel.
    At trial, Detective Norman testified about the interview. In addition to
    testifying about Stalcup’s inconsistent statements about the shooting,
    Detective Norman testified about Stalcup’s description of his arguments with
    Judy leading up to the shooting, the reason Stalcup provided for not rendering
    aid to Judy although he appeared aware of the severity of the injury, and
    Stalcup’s description of his positioning on the couch with the gun.
    Detective Coffman also testified at trial. During the investigation,
    Detective Coffman collected a hollow point bullet at the victim’s autopsy.
    Detective Coffman found fibers at the end of the bullet. The fibers were
    consistent with a pillow found in Stalcup’s residence. That pillow had a hole
    consistent with a bullet and other tears, markings, and soot consistent with
    that from a discharged firearm. The investigators charted the direction of the
    bullet using a dowel rod and concluded that Stalcup had pointed the gun at
    the victim at close range.
    3 Stalcup’s appeal does not challenge the waiver of his Miranda rights.
    4
    Stalcup was charged with and subsequently indicted for committing
    murder and possession of a handgun by a convicted felon. Stalcup was tried
    on the murder charge first. The jury returned a guilty verdict and
    recommended that Stalcup serve thirty-five years in prison.4 Rather than going
    to trial on the possession of a handgun by a convicted felon charge, Stalcup
    entered a guilty plea. The trial court imposed a prison sentence totaling forty-
    three years, thirty-five years for committing murder and a consecutive eight
    years for possession of a handgun by a convicted felon. This appeal followed.
    ANALYSIS
    Stalcup challenges the trial court’s ruling that only part of Stalcup’s
    statement to police was taken in violation of the Fifth Amendment. His
    argument has two parts. First, Stalcup argues that a closer analysis of the
    totality of the circumstances indicates that he was in custody and should have
    been advised of his rights earlier. In particular, he claims he was subjected to
    custodial interrogation from the moment questioning began. Second, he claims
    the detective used the “question first” technique during interrogation to
    circumvent Miranda, a technique prohibited by Missouri v. Seibert.5
    When reviewing on appeal a trial court’s order denying suppression of
    evidence, the factual findings are reviewed for clear error, meaning that the
    4 The jury was also instructed on first-degree manslaughter, second-degree
    manslaughter, reckless homicide, and voluntary intoxication.
    5 
    542 U.S. 600
    , 617 (2004).
    5
    trial court’s findings of fact will be conclusive if they are supported by
    substantial evidence.6 When the factual findings are supported by substantial
    evidence, the next question, subject to a de novo review, is whether the law was
    properly applied to the established facts.7
    The trial court’s order with findings of fact and conclusions of law is
    thorough. The trial court’s factual findings include that “[a]fter asking Stalcup
    . . . to exit the residence, an officer grabbed Stalcup by the arm and pulled him
    to the door, causing Stalcup to fall to the ground,” and that “[o]n the way to the
    sheriff’s office, the officer apologized to Stalcup for pulling him to the ground,
    explaining their concern for officer safety and quickly attending to the victim.
    On the body cam video, the officer and Stalcup can be seen shaking hands
    before heading into the sheriff’s office.” Also in relation to the circumstances at
    the residence, the trial court found that “Stalcup was asked to come to the
    sheriff’s office to be interviewed about the incident and he agreed. Because
    Stalcup had been drinking, Stalcup accepted a ride from the officers.” The trial
    court further found that Detective Norman informed Stalcup at some point
    prior to the interview that he was free to leave and that Stalcup was told prior
    to the interview that he was not under arrest. The trial court also found that
    the interview took place in a small, windowless room; Stalcup was asked to sit
    against the back wall of the interview room; Detective Norman sat between
    Stalcup and the door; Stalcup was not restrained and went to the restroom
    6 Davis v. Commonwealth, 
    484 S.W.3d 288
    , 290 (Ky. 2016) (citations omitted).
    7 
    Id.
     (citations omitted).
    6
    unaccompanied several times during the interview; and Detective Norman
    testified that the door remained open when he was not in the room.
    Because Stalcup does not challenge the trial court’s findings of fact as
    being unsupported by substantial evidence8 and we conclude upon review that
    Detective Norman’s testimony during the suppression heading, the recorded
    interview, and officer body camera video9 is substantial evidence supporting
    the findings of facts, we turn to Stalcup’s argument that the trial court erred as
    a matter of law in concluding that he was not in custody until he was read the
    Miranda warning.
    The trial court found that there was a show of physical force by the
    officers when Stalcup was pulled to the ground at his residence, and as a
    8 With regard to the findings of fact, Stalcup complains that the trial court
    should have made other factual findings supportive of a conclusion that he was in
    custody earlier than the trial court concluded. For example, while the trial court
    found that Stalcup went to the restroom unaccompanied several times during the
    interview, Stalcup points out that while waiting for the interview to begin, he asked
    permission to use the restroom from someone outside the room. He asserts this
    request for permission to use the restroom indicates that he did not subjectively
    believe he was free to leave, and while not the focus of the inquiry, under
    Commonwealth v. Lucas, 
    195 S.W.3d 403
    , 406 (Ky. 2006), his subjective belief is
    relevant to a custody determination.
    9 Stalcup’s appellate arguments rely in part on the findings of fact and
    conclusions of law related to the officers’ actions at Stalcup’s residence and prior to
    entering the sheriff’s office for the interview. These actions were recorded on the
    officers’ body cameras. However, the body camera video is not part of the record on
    appeal; unlike the video of Detective Norman’s interview of Stalcup, appellate counsel
    did not move this Court to supplement the record on appeal with body camera video.
    While appellate counsel makes arguments related to the officer’s show of force at his
    residence, Stalcup does not argue that the trial court’s related factual findings were
    not supported by substantial evidence. Thus, even though the officers’ body cam
    video is not part of the record on appeal, we view the trial court’s findings of fact as
    conclusive. See Coleman v. Commonwealth, 
    100 S.W.3d 745
     (Ky. 2002), overruled on
    other grounds by Bratcher v. Commonwealth, 
    424 S.W.3d 411
     (Ky. 2014).
    7
    matter of law, considered this factor when determining whether Stalcup was in
    custody at the time of the interrogation. The trial court also concluded that the
    interaction which followed between Stalcup and the officer, the officer
    apologizing to Stalcup and shaking his hand, tempered any semblance of
    custody from the previous interaction. Stalcup argues, however, that based
    upon the officers’ actions, he was always in custody for Miranda purposes.
    It is fundamental that the “Fifth Amendment privilege is not violated by
    even the most damning admissions” unless the admissions are a result of some
    official coercion,10 that the Miranda warning is intended to protect against
    inherent coercive custodial interrogation,11 and that “Miranda warnings are
    required only where there has been . . . a restriction on the freedom of an
    individual as to render him in custody.”12
    Custodial interrogation 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. . . .
    The inquiry for making a custodial determination is whether the
    person was under formal arrest or whether there was a restraint of
    his freedom or whether there was a restraint on freedom of
    movement to the degree associated with formal arrest.13
    Stalcup cites Smith v. Commonwealth14 and Howes v. Fields,15 in support
    of his argument that he was in custody from the point of the officer’s show of
    10 Smith v. Commonwealth, 
    312 S.W.3d 353
    , 358 (Ky. 2010) (quoting Oregon v.
    Elstad, 
    470 U.S. 298
     (1985)).
    11 
    Id.
     (citing Michigan v. Mosley, 
    423 U.S. 96
     (1975)).
    12 
    Id.
     (quoting Lucas, 195 S.W.3d at 405).
    13 Id. (citations and internal quotation marks omitted).
    14 Id.
    15 
    565 U.S. 499
    , 515 (2012).
    8
    force. Stalcup relies on Smith’s statement that “[c]ustody does not occur until
    police, by some form of physical force or show of authority, have restrained the
    liberty of an individual,”16 to argue that such physical force occurred when the
    officer removed Stalcup from his residence and consequently he was always in
    custody. Smith, however, further explains that when determining whether an
    individual is in custody, “[t]he test is whether, considering the surrounding
    circumstances, a reasonable person would have believed he or she was free to
    leave,”17 and pertinently, that factors which suggest a seizure has occurred and
    that a suspect is in custody include the 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.18 Thus, as considered by the trial
    16 312 S.W.3d at 358 (citing Baker v. Commonwealth, 
    5 S.W.3d 142
    , 145 (Ky.
    1999)).
    17 
    Id.
    18 
    Id.
     (citing United States v. Mendenhall, 
    446 U.S. 544
    , 554 (1980)). Citing
    United States v. Salvo, 
    133 F.3d 943
    , 950 (6th Cir. 1998), Smith, id. at 358-59, also
    notes that
    [o]ther factors which have been used to determine custody for Miranda
    purposes include: (1) the purpose of the questioning; (2) whether the
    place of the questioning was hostile or coercive; (3) the length of the
    questioning; and (4) 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.
    9
    court, an officer’s show of physical force is only one factor in the determination
    of whether a defendant was in custody at the time of the interrogation.19
    While the trial court explained that an officer’s show of physical force is
    only one factor for consideration in the custody analysis, Stalcup essentially
    argues that in his case, when analyzed properly, that factor should be given the
    most weight. Stalcup cites Howes for the premise that the custody analysis
    does not have a handshake and apology exception after an officer’s show of
    force.
    Howes lists relevant factors for determining how a suspect would have
    “gauged his freedom of movement,” such as the location of the questioning, its
    duration, statements made during the interview, the presence or absence of
    physical restraints during the questioning, and the release of the interviewee at
    the end of the questioning.20 Howes, like Smith, expresses the long recognized
    principle that courts must examine “all the circumstances surrounding the
    interrogation.”21 In contrast to Stalcup’s framing, “exceptions” are not part of
    the analysis. Indeed, within its totality of the circumstances analysis, Howes
    explained that circumstances of that case indicative of custody were “offset by
    others.”22 Thus, as to whether Stalcup was in custody at the time of the
    interview, when considering the totality of the circumstances, the trial court
    19 See id. at 358.
    20 Id. at 509.
    21 Id.
    22 Id. at 515.
    10
    considered the officer’s show of force, the officer’s subsequent interaction with
    Stalcup, as well as the other pre-interview circumstances, such as: Stalcup
    agreed to the interview, Stalcup accepted a ride with an officer because he had
    been drinking, Stalcup was not restrained, and Detective Norman informed
    Stalcup prior to the interview that he was free to leave, and that he was not
    under arrest.
    Furthermore, the trial court considered that the interview lasted over
    three hours and that during the first hour the atmosphere of the interview was
    casual. During this portion of the interview, Stalcup relayed his version of how
    Judy was shot, claiming it was suicide. Detective Norman’s tone was relaxed
    and non-confrontational. However, when Stalcup mentioned that he was
    scared, Detective Norman read Stalcup his Miranda rights.
    The second hour of the interview, following the Miranda warning, was
    more confrontational. After Stalcup admitted to shooting the victim but
    claimed it was an accident, Detective Norman questioned Stalcup about
    inconsistencies between his version of the events and evidence. After Detective
    Norman called Stalcup a liar, Sheriff Carter entered the room and joined the
    interview. Considering the established facts of the questioning, like the trial
    court, we conclude that Stalcup was not in custody until Detective Norman
    gave the Miranda warning. Up until that point, a reasonable person in
    Stalcup’s position would feel free to terminate the interview and leave.
    As noted above, the second part of Stalcup’s argument is that his
    statements should have been suppressed because the detectives used the
    11
    “question first” technique to circumvent Miranda, a technique which Seibert23
    found to be impermissible. Because this argument is unpreserved, Stalcup
    requests palpable error review.
    In Seibert, the United States Supreme Court addressed whether a police
    protocol for custodial interrogation violated Miranda.24 The protocol is
    described as a two-stage interrogation: “At any point during the pre-Miranda
    interrogation, usually after arrestees have confessed, officers . . . read the
    Miranda warnings and ask for a waiver. If the arrestees waive their Miranda
    rights, officers will be able to repeat any subsequent incriminating statements
    later in court.”25 “Although [the pre-Miranda] statement is generally
    inadmissible, since taken in violation of Miranda v. Arizona, the interrogating
    officer follows it with Miranda warnings and then leads the suspect to cover the
    same ground a second time.”26 Seibert concluded that as the technique was
    used in that case to circumvent the suspect’s Miranda rights, the “question
    first” technique was invalid and the post-Miranda repeated statements were not
    admissible.27 Pertinently, in contrast to this case, all of the Seibert defendant’s
    statements were taken during a custodial interrogation. Although uncited by
    Stalcup, Peacher v. Commonwealth,28 is precedent which establishes that
    23 
    542 U.S. 600
    .
    24 
    Id. at 604
    .
    25 
    Id. at 609-10
     (citations omitted).
    26 
    Id. at 604
     (internal citation omitted).
    27 
    Id. at 616-17
    .
    28 
    391 S.W.3d 821
    , 849 (Ky. 2013).
    12
    Stalcup does not have a viable argument for suppression of his statements
    under Seibert.
    In Peacher, like in this case, the Court first addressed whether the
    defendant was in custody prior to being advised of his Miranda rights.29 The
    Court agreed with the trial court that the defendant was not in custody until
    the fourth interview segment and at that time, the defendant was properly
    advised of his rights.30 The Court next addressed the defendant’s argument
    that he was subjected to the “question first, then Mirandize ” technique.31 The
    Court explained that it was not possible for the defendant’s case to run afoul of
    Seibert;32 that is, unlike the Seibert defendant who was in custody from the
    beginning of the interview, the Court had concluded that the defendant was not
    in custody prior to being Mirandized. Like in Peacher, with our conclusion that
    Stalcup’s questioning prior to being read his Miranda rights was non-custodial,
    Seibert is inapposite to Stalcup’s case and cannot afford relief.
    CONCLUSION
    For the foregoing reasons, we affirm the McCracken Circuit Court’s order
    partially granting the suppression motion, and therefore affirm its judgment
    and sentence.
    All sitting. All concur.
    29 Id. at 846-49.
    30 Id. at 846, 849.
    31 Id. at 849.
    32 Id.
    13
    COUNSEL FOR APPELLANT:
    Travis Bewley
    Assistant Public Advocate
    COUNSEL FOR APPELLEE:
    Daniel J. Cameron
    Attorney General of Kentucky
    Courtney J. Hightower
    Assistant Attorney General
    14
    

Document Info

Docket Number: 2021 SC 0552

Filed Date: 8/23/2023

Precedential Status: Precedential

Modified Date: 8/24/2023