Commonwealth v. Vanover

WINTERSHEIMER, Justice.

This appeal by the Commonwealth is from a decision of the Court of Appeals that statements given at the police post and jail by Vanover were the result of inculpa-tory statements made in a police cruiser and should not have been admitted into evidence.

The sole issue is whether the trial court committed reversible error in admitting the evidence of Vanover’s initial confession.

A Perry Circuit Court jury found Van-over guilty of second-degree burglary and theft by unlawful taking over $100, and sentenced him to a total of 6 years. On appeal, Vanover’s conviction was reversed, the Court of Appeals concluding that his constitutional rights were violated by the admission into evidence of an inculpatory statement made by him to a deputy sheriff.

On Sunday afternoon, July 11, 1982, a home was burglarized and Vanover was a suspect. Before being arrested later that afternoon, Vanover declined to make a statement to a sheriff’s deputy. At about 4:10 p.m. on the same day, a state police detective arrested Vanover and read him his Miranda rights. Vanover did not request counsel but he again declined to make any statement. There was no further questioning of Vanover at that time. In advising the accused of his rights, a written waiver form was read to him and signed by the defendant.

Thereafter, the detective again advised Vanover of a witness who said she had seen the accused with the gun near his home at about the time the police estimated he would have been there. Shortly thereafter, Deputy Sheriff Johnny Couch, who was a neighbor of the accused, joined Van-over in the police cruiser. The deputy again advised Vanover of his Miranda rights and told him, “If you did this it would be better if you just went ahead and told us because people have seen you.” Vanover then told the deputy where to find the stolen items. Later he gave two additional statements at the police post and at the jail, but those statements are directly connected with the first admission.

Vanover was convicted but the conviction was overturned by the Court of Appeals pursuant to its application of Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

We reverse the decision of the Court of Appeals because the right to silence does not create an automatic indefinite prohibition on any further questioning.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court ruled that if an individual in custody indicates in any manner at any time prior to or during questioning that he wishes to remain silent, interrogation must stop because he has shown that he intends to exercise his Fifth Amendment privilege and any statement taken after that time is the product of compulsion.

In Michigan v. Mosley, supra, the U.S. Supreme Court held that once the right to silence was invoked, Miranda did not create a per se prohibition of indefinite duration on any further questioning.

Mosley, supra, states:

We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda whether his “right to cut-off questioning was scrupulously honored. A review of the circumstances leading to the Mosley confession reveals that his right to cut-off questioning was fully respected.

The Mosley case involved several factors leading to its result: 1) He was advised of his rights before the first interrogation. 2) The initial interrogation promptly ceased when he invoked his right to silence. 3) The arresting officer did not resume the questioning or attempt to persuade Mosley to reconsider. 4) After an interval of over two hours a different police officer resumed interrogation about the unrelated crime after advising Mosley of his rights again, and, 5) Mosley responded not to the questioning but instead to information about the case against him.

A comparison of the Mosley standards to this case indicates that: 1) Vanover was advised of his rights before the arresting officer asked if he had anything to say. 2) The arresting officer promptly stopped any questioning when Vanover declined to give a statement. 3) The arresting officer did not resume the questioning or attempt to persuade Vanover to reconsider his position. 4) After the interval of an undetermined period of time, a different policeman “questioned” Vanover after advising him of his rights again, and, 5) Vanover responded not to a question, but to a statement apprising him of the evidence in the case the police had just gathered against him.

Here, as in Mosley, the confession was more a product of the accused’s being confronted with the totality of available evidence rather than his will being undermined by repeated and continuous questioning. There is a strong argument that Deputy Couch’s inquiry would not amount to questioning under these circumstances. See Shadoan v. Commonwealth, Ky., 484 S.W.2d 842 (1972); Douglas v. Commonwealth, Ky., 586 S.W.2d 16 (1979). Vanover’s attempt to distinguish these cases is not convincing.

Creech v. Commonwealth, Ky., 412 S.W.2d 245 (1967), is not applicable because the circumstances here are not similar. Vanover was not immediately confronted in such a manner as to persistently wear down his resistance and make him change his mind.

The decision of the Court of Appeals is reversed and this case is remanded to them to consider the other alleged errors raised in the initial appeal.

GANT, STEPHENSON, VANCE and WINTERSHEIMER, JJ., concur. LEIBSON, J., dissents by separate opinion. STEPHENS, C.J., and AKER, J., join in this dissent.