Kevin Ray Burdine v. Commonwealth of Kentucky ( 2022 )

RENDERED: MARCH 4, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1740-MR
KEVIN RAY BURDINE APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JOHN E. REYNOLDS, JUDGE
ACTION NOS. 18-CR-00802-002 AND 19-CR-01044-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND MAZE, JUDGES.
MAZE, JUDGE: The single question in this appeal is whether the Fayette Circuit
Court erred in refusing to suppress statements made in the course of a police
interrogation. Appellant Burdine argues that because the interrogation was
conducted without properly advising him of his Miranda1 rights, any evidence
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
obtained in the interview must be suppressed. Finding no error in the circuit
court’s denial of Burdine’s motion, we affirm its decision in this case.
The facts are straight-forward and undisputed. In the course of a
police interrogation while in custody on unrelated charges, Burdine confessed to a
burglary. After Burdine subsequently moved to suppress his confession, the
Fayette Circuit Court conducted a suppression hearing at which only Lexington
Metro Police Detective David Fetko testified. Detective Fetko stated that in July
2018, he went to the Fayette County Detention Center to interview Burdine about a
February 2018 burglary. While gathering preliminary information during the
initial stages of the interrogation, Detective Fetko told Burdine that he was going
to give him a little background information about the case and then read him his
Miranda rights. He did advise Burdine at that time “if you want to talk to me
great, if you don’t great.” However, Detective Fetko testified at the hearing that
ten to fifteen minutes into the interview, he realized he had forgotten to read
Burdine his rights. At that point, Burdine had already confessed to having
committed the burglary.
Detective Burdine also testified that upon realizing his mistake, he
excused himself from the interrogation room in order to review the tape to confirm
whether he had or had not given Burdine the requisite Miranda warnings. The
audio tape confirmed that Detective Fetko had failed to read Burdine his rights up
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to that point. Dectective Fetko then re-entered the interrogation room, advised
Burdine of his Miranda rights, asked Burdine a few questions, and reviewed the
facts about the burglary. Burdine then admitted to committing the burglary a
second time.
Detective Fetko admitted at the hearing that Burdine’s first statement
was more detailed and that Burdine’s second statement was just a shorter version
of the first. After listening to excerpts from the audio tape of the confession, the
circuit court heard argument of counsel before denying Burdine’s motion to
suppress. Burdine thereafter entered a conditional guilty plea reserving for
appellate review the denial of his motion to suppress his confession to having
committed the crime charged.
The Supreme Court of Kentucky has clearly laid out the standards by
which we review a trial court’s ruling on a suppression motion. First, we review
the trial court’s factual findings for clear error and we are to “deem conclusive the
trial court’s factual findings if supported by substantial evidence.” Williams v.
Commonwealth, 364 S.W.3d 65, 68 (Ky. 2011). Next, we review de novo the trial
court’s application of the law to those facts. Id. Further, the ability to assess the
credibility of witnesses and to draw reasonable inferences from the testimony at a
suppression hearing “is vested in the discretion of the trial court.” Pitcock v.
Commonwealth, 295 S.W.3d 130, 132 (Ky. App. 2009) (citing Commonwealth v.
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Whitmore, 92 S.W.3d 76, 79 (Ky. 2002)). With these principles in mind, we turn
to an examination of the arguments pressed for reversal.
Relying upon Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159
L. Ed. 2d 643 (2004), Burdine insists that the circuit court incorrectly applied the
law in concluding that his second warned statement was admissible. Burdine
maintains that his second statement was so tainted by the use of a technique
commonly known as “Reverse Miranda” as to render it inadmissible. Burdine
describes the technique as one in which an officer obtains a confession without
reading the suspect the required Miranda warnings and then conducts a second
interview after giving the Miranda warnings to confirm what the suspect had
previously admitted to in the first interview. In Seibert, a majority of the United
States Supreme Court held that the use of the invalid “question-first” technique
during custodial interrogations necessarily casts doubt on the voluntary nature of
any subsequent Miranda waivers. Id. at 612-13, 124 S. Ct. at 2610-11. See also
id. at 619, 124 S. Ct. at 2614 (Kennedy, J., concurring).
However, as the Commonwealth points out, Justice Kennedy
concurred in result only, stating that post-Miranda statements obtained using the
“question-first” technique are invalid only where police deliberately employ the
technique to circumvent the suspect’s Miranda rights. Id. at 621-22, 124 S. Ct. at
2616 (Kennedy, J., concurring). Further, the Supreme Court of Kentucky has
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noted in subsequent cases that because Seibert was a plurality decision, its holding
is confined to the “position taken by those Members who concurred in the
judgments on the narrowest grounds.” Callihan v. Commonwealth, 142 S.W.3d
123, 126 (Ky. 2004) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S. Ct.
990, 993, 51 L. Ed. 2d 260 (1977)).
Thus, in our view, the pivotal inquiry in this appeal is whether the
confession in this case was obtained by the use of a deliberate police tactic like the
one condemned in Seibert or was simply the product of a good-faith Miranda
mistake similar to the officer’s oversight in Oregon v. Elstad, 470 U.S. 298, 309,
105 S. Ct. 1285, 1293, 84 L. Ed. 2d 222 (1985). In Elstad, the Supreme Court
concluded that:
It is an unwarranted extension of Miranda to hold that a
simple failure to administer the warnings,
unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect’s
ability to exercise his free will, so taints the investigatory
process that a subsequent voluntary and informed waiver
is ineffective for some indeterminate period. Though
Miranda requires that the unwarned admission must be
suppressed, the admissibility of any subsequent statement
should turn in these circumstances solely on whether it is
knowingly and voluntarily made.
470 U.S. at 309, 105 S. Ct. at 1293.
Here, after considering the evidence presented at the hearing in light
of those opinions, the circuit court entered the following findings and conclusions:
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The Officer advised Mr. Burdine prior to the initial
interrogation that he did not have to answer his questions
and that he would be given his formal Miranda rights.
However, the Officer failed to give him his Miranda
rights once the conversation began. There is no evidence
that the [O]fficer purposefully or deliberately employed
this tactic. Therefore, as the Supreme Court explained in
Missouri v. Seibert, the principles of Elstad should be
applied because the two-step approach was not
deliberately used. 542 U.S. at 603. The question then is
whether Mr. Burdine knowingly and voluntarily gave his
second confession.
As to the nature of Burdine’s second confession, the circuit court
found no evidence that Detective Fetko coerced Burdine into confessing, nor
anything to suggest that Detective Fetko employed improper tactics in making
Burdine agree to the statements he made in the first non-Mirandized confession.
Thus, the circuit court found there was no reason to believe that Burdine’s second
confession had not been voluntarily and knowingly given. Again citing Elstad, the
circuit court concluded that Burdine had simply “responded to unwarned yet
uncoercive questioning” and thus he was “not thereby disabled from waiving his
rights and confessing after he [had] been given the requisite Miranda warnings.”
We reiterate the rationale underpinning Elstad:
We must conclude that, absent deliberately coercive or
improper tactics in obtaining the initial statement, the
mere fact that a suspect has made an unwarned admission
does not warrant a presumption of compulsion. A
subsequent administration of Miranda warnings to a
suspect who has given a voluntary but unwarned
statement ordinarily should suffice to remove the
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conditions that precluded admission of the earlier
statement. In such circumstances, the finder of fact
may reasonably conclude that the suspect made a
rational and intelligent choice whether to waive or
invoke his rights.
470 U.S. at 314, 105 S. Ct. at 1296 (emphasis added).
Burdine nevertheless argues that Detective Fetko’s failure to
undertake “curative measures” before obtaining a second statement undermines
any finding that the second statement could be voluntary. Elstad specifically
dispels that contention:
The standard Miranda warnings explicitly inform the
suspect of his right to consult a lawyer before speaking.
Police officers are ill-equipped to pinch-hit for counsel,
construing the murky and difficult questions of when
“custody” begins or whether a given unwarned statement
will ultimately be held admissible.
470 U.S. at 316, 105 S. Ct. at 1297. Thus, Burdine’s suggestion that Officer Fetko
should have undertaken curative measures in addition to giving him Miranda
warnings is unavailing.
Returning to Callihan, we emphasize that our Supreme Court
interpreted Seibert as requiring exclusion of post-warning statements only “where
police deliberately employ the technique to circumvent the suspect’s Miranda
rights” and stated that such a determination cannot be made “absent an evidentiary
hearing” addressing that specific issue. 142 S.W.3d at 125-26 (emphasis added).
In the current case, after hearing the evidence and argument of counsel, the circuit
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court found that Detective Fetko’s failure to properly Mirandize Burdine was the
result of an honest mistake. We find nothing in the record suggesting that
Detective Fetko intentionally used Burdine’s first statement in an attempt to
overcome Burdine’s will in giving the second post-Miranda statement. Burdine
does not point to any evidence suggesting that Detective Fetko deliberately
employed the “question-first” technique to circumvent his Miranda rights.
While Burdine contends that the circumstances surrounding Detective
Fetko’s questioning were inherently coercive, he does not point to any evidence
which would cast doubt on the voluntariness of his post-Miranda statements.
Indeed, nothing in this record allows us to conclude that the circuit court’s findings
lack the support of substantial evidence. It was well within the discretion of the
circuit court to assess the credibility of witnesses and to draw reasonable
inferences from the testimony at the suppression hearing. On the undisputed facts
of this case, we concur in the circuit court’s assessment and hold that it did not
clearly err in denying Burdine’s motion to suppress his post-Miranda statements.
Accordingly, we affirm the decision of the Fayette Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Noel Caldwell Daniel Cameron
Jerry L. Wright Attorney General of Kentucky
Lexington, Kentucky
Courtney J. Hightower
ORAL ARGUMENT FOR Assistant Attorney General
APPELLANT: Frankfort, Kentucky
Jerry L. Wright ORAL ARGUMENT FOR
Lexington, Kentucky APPELLEE:
Christina L. Romano
Assistant Attorney General
Frankfort, Kentucky
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