Anthony Stalcup v. Commonwealth of Kentucky ( 2023 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”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OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
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UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A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
WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO
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NOT TO BE PUBLISHED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