Canler v. Commonwealth
870 S.W.2d 219
Ky.
1994
Check Treatment

*1 v. guilty pursuant to North Carolina plea of 27 L.Ed.2d Alford, 400 U.S. WARREN, Movant, L. Michael facili- charge of criminal public As a bribery of a servant. tation to result, has sentenced to twelve movant been ASSOCIATION, BAR KENTUCKY jail, compliance with probated. In months Respondent. by Knox probation imposed No. 93-SC-974-KB. Court, requests permission to movant Circuit Kentucky. Supreme Court KBA under terms of disbar- resign from the ment. 31, 1994. Jan. hereby permitted to re

Movant terms, pursuant to SCR such sign under 3.480(2). Any request for reinstatement Mov- pursuant to SCR 3.520. shall be made regulations abide all rules and ant shall disbarment, including, but governing such to, practicing in prohibition from not limited notify Kentucky and the Commonwealth compliance with ing all current clients Furthermore, deems this Court SCR 3.390. to be in violation of SCR conduct movant’s 3.130-8.3(b) lawyer prohibits a that reflects ad committing a criminal act honesty, versely lawyer’s trustworthi on that ness, lawyer. fitness as a or

All concur. J.,

LAMBERT, sitting. not January 1994. ENTERED: Stephens F. Robert /s/ STEPHENS, F. ROBERT Justice Chief ORDER Movant, Warren, requests per- Michael L. CANLER, Appellant, Jeffery Neal Kentucky Bar

mission to withdraw from the under terms of disbarment and Association Kentucky, COMMONWEALTH object. KBA not does Appellee. by the Knox Circuit Movant was indicted tampering public for one count of No. 93-SC-049-DG. 519.060, one records in violation of KRS Kentucky. Supreme Court of misconduct, first-degree count of official 522.020, count of and one violation of KRS 31, 1994. Jan. bribery public criminal facilitation to 508.080 and KRS servant in violation KRS plea guilty entered a

521.020. Movant and entered a

charge of official misconduct *2 Elkton, appel- Dillingham, E. for

Kenneth lant. Gorman, Gen., Atty. Rickie L. Pear-

Chris Gen., son, Appellate Atty. Asst. Criminal Div., Frankfort, appellee. for

REYNOLDS, Justice. Court-, order,

Logan suppressed Circuit upon Jeffery Canler’s confession evidence of against him criminal abuse indictment for 508.100). (KRS degree. The the first constitutionality of the stat- upheld the Appeals’ judges of the Court of ute. Two Logan panel the order of Circuit reversed admissible. and held the confession Court panel affirmed the constitutionali- The entire opinion ty affirm the of KRS 508.100. We Appeals upon the constitutional- the Court of much of ity of KRS 508.100 and reverse so render the majority opinion that would confession admissible. defendant’s at the A infant was left five-month-old Canler, Cindy baby-sitter, whose home of her Later, husband, appellant. Jeffery, is the on the day, were found the same bruises abuse, parents, suspecting had child and the An inves- by physician. baby examined upon appellant, who tigation focused later baby his with the while had been left alone shopping. wife was filed, Can- charges had not been Although attorney. appellant, employed an ler counsel, to a through agreed to submit examination, agree- under an but requesting that there not be specifically ment test any questions other than day testing, the examina- prior to itself. The by investigators changed tion site was Madisonville, occa- Bowling Green appellant’s counsel’s a conflict in sioned Prior to exami- nonattendance. schedule and counsel, nation, signed a appellant, without encompassing his Miranda rights. waiver Canler, minute following a seven to ten examination, by questioned involuntary cannot be statement An two approximately polygraph examiner Min trial under circumstances. used at and, result, made the aas hours Arizona, cey v. statement, “I I did. hit her.” (1978). However, statements 57 L.Ed.2d Appeals’ pan- majority of the *3 in violat circumstances by a defendant made 42, 459 U.S. upon v. el relied impeach for are admissible ing Miranda (1982), 394, and 74 214 L.Ed.2d ment, satis long as their trustworthiness so Commonwealth, Ky., 587 Silverburg v. in language legal Id. The fies standards. (1979), 241 the confession to admit S.W.2d alleged stating that the the trial court’s evidence, holding ini- appellant had into that by appellant made the confession/statement interrogation by agreeing to take tiated the by party under used either “cannot be test, the examin- the which invited rebuttal, circumstances,” not even use in for alleged any questions the to ask about er that the found that trial court is conclusive distinguish these of the child. abuse We involuntary. was the statement that appellant not assume cases as this did the trial observed court While questions would be asked after the positionally to and was situated witnesses examination, attor- markedly, appellant’s but evidence, including appellant’s consider all specific ney clearly requested a and received (RCr 8.22), it the Com affidavit remained agreement questions, to the no effect that prove appellant’s to that monwealth’s burden relating other than those voluntary. v. Com were Tabor statements test, Herein, would be asked. Detective Jen- (1981). monwealth, Ky., 613 As S.W.2d 133 policy it of the general kins testified that is a 477, Lego 92 Twomey, in v. 404 U.S. stated Kentucky a attempt State to to use Police (1972): 30 618 S.Ct. polygraph examination to obtain a confession challenged as involun- a confession [W]hen certainly intending that he to obtain and was against criminal tary sought is to be used of a confession from on the date trial, to a he is entitled defendant It was error to examination. clear-cut rehable and determination relating hold that the evidence to the circum- voluntarily in ren- the confession was fact surrounding appellant’s stances statement Thus, prosecution prove must dered. admissible manner in would be to show the by preponderance evi- least of the obtained, except the confession was voluntary. dence that confession was place the fact that he would allowed to not be unnecessary to the second It is address fact into evidence the that there awas by appellant. issue raised graph examination. 508.100(l)(e) At issue is whether KRS issue appeal was whether unconstitutionally vague. is Herein Canler sup in the trial court abused discretion its argues trial in overrul that the court erred Here, pressing the the trial confession. ing to uncon his motion declare the statute ruling long court’s is as it is conclusive so argues agree. We do not He stitutional. supported Harper substantial evidence. in ruling erred that a severe that the court Commonwealth, Ky., 665 694 S.W.2d phys spanking that does not in result serious denied, cert. 106 S.Ct. injury, permanent may con scarring, ical or (1986); 90 L.Ed.2d 992 “torture, Crawford cruel or cruel stitute confinement (1992); Ky., 824 S.W.2d punishment” statutorily prohibited. as appellant’s The trial RCr 9.78. court found defines in the KRS 508.100 criminal abuse alleged involuntary confession and substan degree: first supports ruling. evidence tial record (1) person guilty A in of criminal abuse degree intentionally first when he expressly The Commonwealth find- waived person another permits abuses another or ings ordinarily fact which to are utilized custody to person of whom has actual (RCr 9.78). trial support ruling. court’s thereby: abused and be appeal jointly pre- The order now under parties. pared by

(c) torture, admissibility Causes cruel confinement or appellant’s reversed as to (12) punishment; person confession, cruel ato twelve respect and is affirmed with less, years age physically or or who is upholding constitutionality 508.- KRS helpless mentally helpless. 100(l)(c). or Commonwealth, Ky.App., Cutrer v. STEPHENS, C.J., LAMBERT, (1985), rejected and S.W.2d 156 the unconstitu- STUMBO, JJ., tionally concur. vague argument upon a lack LEIBSON based statutory punishment.” definition of “cruel SPAIN, J., part concurs and dissents Appeals correctly The Court of concluded part by separate opinion in which plain language of KRS 508.110 and WINTERSHEIMER, J., joins. sufficiently apprise KRS 508.120 clear to *4 ordinary persons types of sensible the of acts SPAIN, Justice, concurring part in and they experienced sanction. The courts have dissenting part. in difficulty determining little in what consti- agree I Majority with the that 508.- KRS punishment tutes cruel under the terms as 100(l)(c) unconstitutionally vague. I is not Kentucky found in 17 Section of the Consti- dissent, however, respectfully from the hold Eighth tution as well as the Amendment to ing appellant’s that the confession was inad the United States Constitution. Workman v. my opinion, Ap In missible. the Court of (1968), Ky., 429 S.W.2d 374 peals correctly appellant, by found that the provided punishment punish- cruel to be that test, agreeing polygraph to take a in effect ment which shocks the conscience vio- and i.e., interrogation”; “initiated invited the ex principles lates the of fundamental fairness. questions him aminer to ask about the abuse cognizant ordinary The court is that words baby. ruling, of the Hall In so the of given ordinary and statutes shall be their Appeals’ opinion precedent cited as Wyrick meaning. process KRS 446.080. The due 42, 103 394, 459 74 U.S. S.Ct. L.Ed.2d require clause does' not the statute to meet (1982). case, accused, Fields, 214 In that the impossible specificity. of standards Stated police charged counsel after him retained otherwise, plain language the of the statutes raping eighty-one-year-old an woman. sufficiently apprise was clear to or notice request, given polygraph At his Fields was a ordinary persons types and sensible as signed examination after he had a consent of acts that the sanctioned. statutes waiving rights form his constitutional to re has, essence, Appellant requested in the of main silent and to the advice counsel. hold, law, spank- court to that as matter test, administering After the the examiner is, ing punishment. can It never be cruel test, had failed advised Fields that he however, jury’s determine function to explain and him if he could his an asked during a whether the amount of force used then confessed to the crime. swers. Fields spanking “shocks the conscience” or is unfeeling.” Connelly Supreme “heartless and The U.S. Court found Fields Co., 903, interrogation request- he Bonding Ky. American & Trust 113 had initiated when 69 S.W. 959 defines “cruel” as “heart- ed a examination: jury’s unfeeling.” less and It is the function only right .'.. Fields not his to be waived to determine whether the amount of force free of contact with the authorities during spanking pun- constitutes cruel used attorney, right of an but also his absence Appeals aptly ishment. As the Court of interrogation to be free of about the crime stated, spanking we do not find that can validly suspected. of which he was Fields punishment, never be cruel and until such right present at waived his to have counsel made, determination is we do not decide “post-test” questioning, the circum- unless whether the evidence here is sufficient to changed seriously that his an- stances so punishment finding of cruel under sustain a longer voluntary, swers no were or unless 508.100(l)(e). KRS “knowing longer making a he no was opinion Appeals intelligent relinquishment or abandon- the Court part. rights. (Citing Edwards v. part and affirmed in It is ment” of his reversed

223 Arizona, 1880, unreasonable 477, 482; have been [I]t 451 101 S.Ct. would U.S. (1981).) attorneys 1883; to assume Fields and his and 68 L.Ed.2d 378 not be informed of Fields would 396, at Wyrick, 459 U.S. at any explain readings and to asked at 218. L.Ed.2d Moreover, had Fields result. unfavorable case, agreed also to present In the Canler ques- stop been could informed right and waived his take the test time, request at tioning any and could at present during counsel exam. to have join Merely lawyer him. time that There is no evidence that Canler coerced equipment disconnecting nor signing the written waiver into an- into knowledge from remove this could not swering questions polygraph ma- after the Fields’ mind. court chine was disconnected. held further specifically that no Miranda at Wyrick, S.Ct. warnings required: were 219. facts Appeals The Court relied two above, affirm In of the I would view of all indicating the need for a new set of warn- Appeals that the Court of holding ings: examination had been Halls’ abusing Canler’s confession discontinued, if he and Fields asked baby, his trial. would be admissible at explain could the test’s unfavorable results. *5 require warnings To new because of these WINTERSHEIMER, J., joins this Disconnecting two facts is unreasonable. dissenting concurring opinion. polygraph equipment effectuated no character significant change

interrogation. agent have The CID could during

informed the examination Fields deceit; asking

that his answers indicated equipment after the was discon-

nected, why bothering the answers were

him was not coercive. more Wyrick, 459 U.S. at FIRE & MARINE ST. PAUL at 218. COMPANY, INSURANCE majority states that Canler’s submis- Movant, examination “... sion agreement specifically an requesting under any questions not be

that there other than POWELL-WALTON-MILWARD, However, test itself.” Detec- INC., Respondent. Jenkins, attorney Canler’s tive whom agreement concerning made the No. 93-SC-418-CL. exam, only agreed he maintains that Kentucky. Supreme Court he would not interview Canler at Madi- exam to be where sonville 31, 1994. Jan. lab, crime and that

administered the KSP accordingly part in inter- took no Canler’s rogation. majority attempts distinguish also case, supra, and the case

Silverburg Ky., present ease

S.W.2d “...

stating did [Canler] this questions would be asked

not assume This examination-”

after by Wyrick

contention was also answered follows:

court as