595 S.W.3d 106
Ky.2019Background
- Victim reported rape and robbery in December 2015; physical evidence (including a condom) and a photo-array ID led to Bullitt’s arrest and a videotaped police interview.
- Bullitt was tried and convicted of first-degree rape (acquitted of robbery and wanton endangerment; handgun charge dismissed). Jury recommended 10 years; after a jury found Bullitt a PFO I based on an October 2010 Georgia statutory-rape conviction, the sentence was enhanced to 20 years.
- The Commonwealth proved Bullitt’s Georgia conviction (certified record) and elicited testimony that Bullitt was ~20 at the time; the Commonwealth did not introduce evidence of the Georgia victim’s exact age at trial.
- Bullitt moved for a directed verdict on the PFO I charge, arguing the Commonwealth failed to prove the prior was a felony sex crime against a minor; the trial court denied the motion.
- Bullitt also moved to suppress post-arrest statements, arguing he invoked his right to remain silent but police continued questioning; the trial court denied suppression and admitted portions of the videotaped interview.
- The Supreme Court of Kentucky affirmed, holding (1) the evidence permitted a reasonable inference that the Georgia conviction was a sex crime against a minor for PFO purposes, and (2) Bullitt’s statements did not amount to an unambiguous invocation of the right to remain silent.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Bullitt) | Held |
|---|---|---|---|
| Sufficiency of evidence for PFO I based on out-of-state statutory-rape conviction | Testimony plus certified Georgia conviction allowed a reasonable inference the Georgia offense was statutory rape involving a minor and thus qualifies as a felony sex crime against a minor under KRS 532.080(3) | Commonwealth failed to prove the victim’s age; without victim age the Georgia offense cannot be shown similar to Kentucky rape statutes, so PFO I cannot be based on it | Affirmed — jury could reasonably infer the prior conviction was a sex crime against a minor; directed-verdict denial proper |
| Suppression: whether post-invocation statements should be suppressed (Fifth Amendment) | The challenged remarks were ambiguous and, in any event, Bullitt later reinitiated discussion, so interrogation could continue and statements are admissible | Bullitt unambiguously invoked his right to remain silent and police violated Miranda by continuing; statements after invocation should be suppressed | Affirmed — remarks were not clear invocations; where Bullitt later resumed talking, waiver occurred and no suppression warranted |
Key Cases Cited
- Gadd v. Commonwealth, 665 S.W.2d 915 (Ky. 1984) (prior-conviction challenges must be raised pretrial and prosecution need only prove fact of prior conviction)
- McGuire v. Commonwealth, 885 S.W.2d 931 (Ky. 1994) (limits collateral attack on prior convictions used for PFO to complete denial of counsel)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact that increases penalty beyond statutory maximum must be submitted to a jury and proved beyond a reasonable doubt)
- Berghuis v. Thompkins, 560 U.S. 370 (2010) (invocation of Miranda rights must be unambiguous to require cessation of questioning)
- Meskimen v. Commonwealth, 435 S.W.3d 526 (Ky. 2013) (suspect must clearly articulate desire to remain silent for invocation to be effective)
- Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky. 2011) (ambiguous statements about going to jail do not constitute unambiguous invocation of right to silence)
- Buster v. Commonwealth, 364 S.W.3d 157 (Ky. 2012) (officers may not continue interrogation after a clear invocation; attempting to persuade suspect can violate the right)
- Gomez-Mendez, United States v., 486 F.3d 599 (9th Cir. 2007) (discussion of a generic definition of "statutory rape" for categorical-comparison purposes)