Fugett v. Commonwealth

Indеed, against her. paid by Ms. Evanswood has and pursuant the Movant to SCR 3.500(5). practiced Kentucky never law in nor solic- ited in Kentucky clients since she was Thus, it is ORDERED that: practice admitted to law 1994. She has Evanswood, 1. Linda Jane KBA Mem- any never had pend- clients with matters ber No. is restored to the any before in this Common- practice of law effective as of the wealth and any has never had matter be- date hereof. fore other court the United States 3.500(5), 2. accordance with SCR involving Kentucky law. Ms. Evanswood’s pay Movant is directed to all costs practice Michigan has been limited to and proceeding associated with this Washington D.C. the amount of for which exe- $185.62 may cution issue from this Court

Ms. completed applica- Evanswood her upon finality of this order. tion for pursuant restoration to SCR 3.500(1) and application filed said on Janu- sitting. All All concur.

ary application 2008. The accompa- $1,110.00, nied repre- check for which

sented satisfaction of dues for the current dues,

year, back payment application fee. The

$250.00 was subse-

quently found to complete and no disci-

plinary matters were found to be pending. application

The supported by three FUGETT, Appellant, Isiah sworn affidavits of members of the Bar good standing, who were members of the Michigan Kentucky Bar rather than attor- Kentucky, COMMONWEALTH of However, neys. Ms. pre- Evanswood had Appellee. viously sought permission and obtained the No. 2006-SC-000051-MR. of the Executive Director of the Bar Association and the Office of Bar Ad- Supreme Kentucky. Court of mission for the submission of these affida- Moreover, vits. one of the affidavits is April from a member of the Michigan Attorney

Discipline Board and Character and Fit-

ness Committee of the State Bar.

Accordingly, having found that appli-

cation all legal requirements satisfies law,

for restoration to the practice of in-

cluding requisite sworn affidavits from in good standing, finding

members no impediments, hereby adopt

other

recommendation of the Board approve entry of an restoring order Ms. Linda

Jane Evanswood practice of law in Kentucky. Commonwealth of

costs of this proceeding will be assessed Defender, Louisville,

ferson District Public KY, Appellant. for Counsel General, Conway, Attorney Jack James Shackelford, Attorney C. Assistant Gener- al, Appeals, Office of Attorney Criminal Office, Frankfort, KY, General’s Counsel Appellee. Opinion of the Court Justice SCOTT.

I. Introduction Isiah was convicted of two counts Manslaughter Degree, Second (KRS) 507.040, Revised Statute Physical and one count of Tampering with By Evidence. agreement KRS 524.100. Commonwealth, Fugett with the was sen- (30) thirty years prison. Ap- tenced in pealing right, to this as a matter of Court 110(2)(b), Fugett § Constitution (1) argues by: the circuit court erred fail- сomply pro- with the administrative (2) selection; governing jury cedures de- (3) nying challenge; denying his Batson (4) cause; juror challenges denying his for statements; suppress his motion to his and (5) admonishing jury disregard evi- previously dence that the victims had ad- being possession mitted stolen error, regarding a pistol. Finding 9mm cause, for must reverse challenge for a trial. new Background II. Factual 26, 2004, Ray Eric and January On Rob- ert Robbins went to a downtown Louisville marijuana. looking Chevron station Fugett agreed met with and he Robbins get marijuana and call ar- with rangements for the sale. Around 10:30 p.m., Fugett got Dalisha Fields to drive phone him. He borrowed her cell him Goyette, Daniel T. Louisville Metro Pub- confirmed that Robbins would meet Defender, Heft, Jr., lot parking lic Frank across from the Chevron in the William McMahon, drove Elizabeth B. Office of the Jef- of the Clarion Hotel. Fields then interview, portion of the Fugett parked During to the Clarion Hotel and ‍‌​‌​‌​‌​‌​‌‌‌‌​‌‌​​​​​‌​‌‌‌​‌​​‌​‌‌​​‌‌‌‌​​‌​​‌‌‍initial near a van. led to believe he Fugett the officers willing to assist information and would Shortly, Navigator a black Lincoln However, early investigation. into Fugett got beside them and pulled 28th, January ap- he morning hours Navigator. A short the rear seat for the a detective and indicated proached later, car time returned to Fields’ Fugett a role may time that he have had first shotgun. He informed Fields Thus, when the detectives the incident. boys pulled he shot one a.m., Fugett given at 5:50 returned shotgun on him. He then her to drive told warnings. executing After Miranda apartment. to her waiver, he informed officers drove, Fugett wiped she off As the blood present shootings. at the had been While shotgun. apartment, At her trigger, pulling denied he admitted he gave shotgun pistol her 9mm then guns. he had hidden the He was Later, hide. contacted Fields a.m., again ap- arrested. Around 10:30 weapons she admitted she had hidden the the officers and said he had shot proached him to Fugett’s request and had driven using pistol the victims self-defense weapons the Clarion Hotel. Both Ray’s pocket. had taken recovered. Ray’s body Eric un- partially found Analysis III. the passenger derneath side of the vehicle. Jury A. Selection being

His wounds were consistent with back, shot once from the from behind once jury Fugett argues first the method vehicle, fаlling while from the and once County selection Jefferson violated Robbins, on ground. while Robert jury up to a made of a fair cross right pool vehicle, was feet lying who fifteen from the community. points of the He out section alive His was when officers arrived. out, summonses sent 3281 that of being wounds were consistent with shot Fugett argues unaccounted for. were died running while from the vehicle. He II, § Part 6 of the Administrative under hospital. at the Court, was Procedures of the the court to required personally have sheriff A patron at the hotel had heard jurors. a summons on each the 328 serve being shots observed Robbins shot as Instead, court KRS the circuit relied on Chevron, Jeffery ran. A at clerk 29A.060(4), leaves it to the court’s which Johnson, knew the victims and said he jurors are to as to whether discretion shooting evening seen them on the of the Citing Kentucky personally be served. talking with an known African-American (RCr) 1.02, Procedure Rules of Criminal by an as Bosco. “Bosco” was alias used argues holding court Fugett erred Fugett. that the controls. statute They was further learned that procedures being jail unrelated In accordance with released an Court, a summons marijuana approached the Jefferson Circuit charge. When later detectives, by along qualifica- with a by agreed accompany issued mail form, however, jurors prospective headquarters questions. them to tion answer brief, along acknowledges the 132 Fugett’s quently these two 1. in footnote counts for, parties agreed prospective jurors leaving that the two accounted total of However, Fugett be subse- should excused. 29A.060(4), qualification were directed to return the which states that the sum- “[i]f only they form if felt disquali- were mail, by mons is served prospective fied, seeking postponement, or be- juror juror qualifi- who does not return the lieved should be excused. If the form (10) days may cation form within ten returned, was not prospective juror personally by the served sheriff case, expected appear. Fugett’s In discretion of the Judge[.]” Chief Circuit 196 of the 700 issued were returned as added). (Emphasis non-deliverable. Another 132 failed to re- Fugett argues that since the statute spond appear.2 or deals with rules of рractice procedure Therefore, rejected court, before the separation violates the unresponsive jurors motions to have the § of powers doctrine set out in 28 of the served, personally leaving prospective Kentucky light Constitution. of the these, available to hear his case. Of § differences between 6 and KRS by agreement two were excused 29A.060(4),we are forced to conclude that parties. The remaining 148 had to then be However, a conflict does exist. this con- randomly reduced to 125 to meet the fire clusion finding does not mandate a that the code imposed limitations on the circuit circuit court erred in relying on KRS County. courtrooms in Jefferson The re- 29A.060(4) may for reasons that we consid- service, jury mainder was available for er questions comity. selected, in his case. § Under Kentucky Constitu- Taylor As noted in v. Common tion, authority pre- this Court has the wealth, (Ky.2005), comi governing procedures scribe rules be- ty judicial adoption “means the of a rule II, § fore courts. Part 6 of the unconstitutionally legisla enacted Administrative Procedures of the Court ture obligation[,] not as matter of but states in pertinent part, that “[i]f the sum- out of respect.” deference and We went mail, mons is any prospective served on to that “for a statute to be extend who does not return the qualifi- comity ed that Court must find such a (10) cation form days within ten ... shall statute statutorily acceptable is a substi personally served the sheriff.” Fur- judicially tute for proce current mandated 1.02(2)

ther, RCr that states the ex- “[t]o or can in a spirit dures be tolerated they tent are not inconsistent with comity unreasonably because it does not Rules, regulations, these the administra- interfere orderly functioning with the procedures, tive publish- and the manuals (Internal quotes the courts.” Id. at 77 ed the Administrative Office of the omitted). and citations “The decision to ... Courts shall have the same effect as if comity a Thus, extend statute otherwise un incorporated in the pro- Rules.” the sepa constitutional because it violates adopted by cedures the rules of this the Court require powers the ration of personally summons be doctrine is one of institu served. This is cоnflict with tional policy KRS reserved for the Supreme respond appear, judge 2. For those who fail to or the responses circuit then reviews the judge informing chief circuit (i.e. sends out letters appropriate assigning takes action the prospective jurors importance the of the prospective juror granting pool, to a later responding, subject and that are to con- postponement, excusing person). the For tempt ignore should continue to the sum- remaining prospective jurors the who fail to majority mons. The of those who receive the respond, the court issues second summons. respond explanation. letter with an The chief Overstreet, “Challenging prospective only.” v. Foster Court Equal the of race violates the 504, basis S.W.2d v. Com Washington Protection Clause.” Here, comity and common sense monwealth, (Ky. 34 S.W.3d 378-79 application that we the accept dictate 2000). Therefore, objection an to the use 29A.060(4). statute, the the KRS Under is challenges ground on this peremptory is left with the discretion to utilize court set three-step process under a evaluated neces personal summons as deems Kentucky, out in 476 U.S. Batson dis sary. grants (1986). As statute broader Cit 90 L.Ed.2d 69 106 S.Ct. court, say cannot it ham cretion to we Batson, Washington ing to this Court in unreasonably interferes pers or as process, follows: described justice. administration of First, pri- must make the defendant showing ma of racial bias for facie this broader discretion Second, challenge. if the peremptory places appropriate like Jefferson Coun made, the requisite showing has been ty, where the size limitations of the court to the Commonwealth burden shifts jury pools larg mandate that be no rooms reasonably specif- articulate “clear and Thus, then a certain if er number. even use of a ic” reasons for its race-neutral “ personal bring service had been used challenge. peremptory “While jurors, than 150 more the number would justi- not rise to the level reasons need been still have reduced to based on cause,’ self-serving fying challenge for Finally, limitations under fire code. its explanations on intuition or dis- based did portion note nоt show are discriminatory motive” claimers of class, county, specific or a was ex v. Common- insufficient. Stanford pool. cluded Under these cir wealth, (Ky.1990) cumstances, we cannot the court erred Batson, 98, 106 S.Ct. (quoting supra, at 29A.060(4). applying KRS Nor can we 1724.) has Finally, at trial court say Fugett jury pool up was denied a made credibility of to evaluate duty community.3 of a fair cross section of the proffered reasons and determine purpose- has established defendant a Batson Challenge Establishing B. ful discrimination. Washington, argues next Common three-step out impermissibly per Applying process two of set

wealth used Batson, the trial concluded emptory challenges against African-Amer African-American, jurors. Fugett, had estab- acknowledging ican While the an showing case the by race-neutral rea lished facie prima Commonwealth offered sons, four of its argues he do had exercised those reasons not with Commonwealth scrutiny. challenges against Afri- peremptory asserts that two nine stand hand, differently jurors. On the other jurors were from simi can-American treated jurоrs. Thus, fourteen-person panel the larly argues situated the we note that three Fugett’s case included rejecting court erred his Batson chal heard jurors. chal- Fugett’s African-American lenge. 29A.060(4), selecting the granting comity the Jefferson Circuit Court in In to KRS reject Fugett’s process jury pool, Fugett’s argument must claim that the court’s that the on the in error. reliance statute was moot. deviation is now involves a substantial procedures by we find no used as error however, discrimination, lenge, only yet on focuses two of the views of had not been jurors by four African-American struck out-spoken. so extreme or These circum- the Commonwealth. to stances led the court conclude the Com- looking ju- monwealth was individual objection, a consequence As of the rors, simply acting racially- and not required was to articulate Commonwealth impermissible grounds. reasonably specific clear and race-neutral for peremptory reasons its use of the chal- supports The record our thus conclusion lenges. As to Juror the Common- three-step process aрplied juror noted that believed Afri- wealth properly complied and the with against can-Americans were discriminated duty evaluating the reasons offered. system, that whites had too much circumstances, Under these we cannot power, the death political penalty and that rejecting Fugett’s the court erred in Bat- population not be used should for control. challenge. son juror also noted that his own research only person shown had one white had ever to C. Motions Strike penalty killing received death for an For Juror Cause African-American. argument third concerns As Juror Commonwealth circuit to deny court’s decision his motions pointed juror out that the had described to strike 119631 and for Jurors a very negative experience po- detail with cause. The record established that expressed lice. 125118 had the be- (9) used all his peremptory nine chal- unfairly lief that were African-Americans that, Moreover, lenges. Appellant argues system, treated were since he was forced remove Jurors likely charged, and that more peremptory 119631 аnd 123804 with his system seemed to more time impose for challenges, when should have been marijuana offenses than murder. cause, stricken he was denied sub- response, argued jurors right necessary stantial tool and to selec- being differently from treated simi- jury, tion impartial of an as well as the larly jurors. Fugett situated white noted right jury. an impartial several white admitted to hav- In Kentucky, right impartial to an negative experiences police. Fu- § jury protected by is 11 of the also gett argued that Juror 116572’s an- Constitution, as the as well Sixth concerning historical discrimination swers Fourteenth Amendments the U.S. Con- penalty popula- use of the death as Fugate stitution. See out of tion control were taken context. Under Having arguments, heard both the court 9.36(1), RCr shall be excused for prof- concluded Commonwealth cause ground “[w]hen there reasonable fered race-neutral reasons. The court to believe that a cannot prospective specifically noted that Commonwealth impartial render a fair verdict on free the totality to consider evidence[.]” juror’s responses. further not- however, Fugett, attempt made no that responses interpreted ed could be that jury to show that the heard his case out-spoken Finally, the court as beliefs. was, fact, Instead, in impartial. argues he noted three African-Americans were we our in panel. position Morgan to the court should reverse significance on Of Commonwealth, jurors (Ky. the fact that v. 189 S.W.3d 99 these shared

613 2006), light in in context and prospective overruled Shane v. Common wealth, and (Ky.2007), juror’s knowledge and re of the facts 243 336 of the S.W.3d out v. 57 understanding Stopher, turn to standard set in Thomas of the law.” Commonwealth, (Ky. 864 S.W.2d 252 at 797. S.W.3d 1993).4 did, This opinion our recent said, having been “[t]he This Commonwealth, v. of Shane 243 S.W.3d juror a determining for whether test Thus, (Ky.2007). if a 336 court abuses be stricken for cause is ‘whether should denying a for cause challenge discretion his juror can prospective ... conform a party peremptory and the had to use requirements to the of the law views fact, juror and, challenge to strike the ” impartial a fair and verdict.’ render it is peremptory challenges, used all Commonwealth, v. 147 S.W.3d Thompson Stopher error. v. rеversible See Common 22, (Ky.2004) Mabe v. Com (quoting 51 wealth, 787, As (Ky.2001). 57 796 S.W.3d monwealth, (Ky. 671 884 S.W.2d chal peremptory used all of his 1994)). such, weigh As court must “[t]he lenges, we are left to decide if the court prejudice or based probability of bias denying its discretion in his chal abused juror’s responses entirety on the lenges for cause as to either 119631 Juror ‘magic ques There is no and demeanor. or Juror 123804. juror impar that can a as tion’ rehabilitate Kentucky recognized has long question a tiality is not a technical but that “a determination as to whether Shane, of mind.” 243 at 338. state S.W.3d juror exclude a for cause lies within dire, During voir Juror court, and sound discretion of the trial cousin, that his second a for stated wife’s an unless action of the trial court is officer, Mackenzie police mer Louisville erroneous, clearly abuse of discretion ‍‌​‌​‌​‌​‌​‌‌‌‌​‌‌​​​​​‌​‌‌‌​‌​​‌​‌‌​​‌‌‌‌​​‌​​‌‌‍or is duty when shot and Mattingly, was on he appellate an court will not the trial reverse drug a was sub suspect. Mattingly killed court’s determination.” v. Com Pendleton acquitted mur sequently charged and monwealth, (Ky.2002) 83 S.W.3d not his relation der. While he did believe (internal omitted). quotes and citations would faсtor into his ship Mattingly Commonwealth, See also Soto v. service, he jury acknowledged he (“A (Ky.2004) S.W.3d determina probably give weight great more would tion whether a cause to excuse for credibility testimony police er lies within the discretion the trial sound officer, simply police because only court and reviewed a clear for firmly He about officer. felt his belief discretion.”). However, abuse of the deci credibility in their greater have sion to exclude a is based cause depend totality circumstances, on the of the not on testified; po felt simply which officer response question. one Mor See credibility wit lice have more than other Commonwealth, gan v. nesses. on other part grounds overruled presented problem 119631 also Shane duty considering mitigating recognizes This pun- phase, stating trial court evaluate the answers of his belief penalty “to Fugett also 19 of the Consti- raised the issue of retroactive tution Section trial, application Morgan pre-Morgan argument, to his We address tution. do not ’’ arguing an of Arti- “Ex Post Facto violation since it is now moot. I, Consti- cle Section 10 of the United States only ishment should be based on In Stopher, what this Court found no error in juror trial day occurred on court’s refusal to strike a killing, rather cause when a police his father had been person’s past. than consideration of a He juror officer. There we found the “did not use, did not believe that a person’s or any preference have for police officers and abuse, any of alcohol should have effect on family ... his connection to the law en- actions, and so those factors not should profession forcement in would no manner Moreover, be considered. he believed that ability affect his to decide the case based only history a of person’s violence should presented.” Stopher, on the evidence punishment. considered on the issue of Soto, juror S.W.3d at 797. In “stated prosecution When asked as to might give ‘slightly’ weight that he more would, whether he in his sentencing deci- testimony police officer than to sion, consider factors like defendant’s lay person. aof He also stated that age, IQ, or the kind of home in which he impartial he could render a fair and deci- raised, responded he that he could case, concerning sion all the facts of the 10, 11, age, person consider if the including range penalties the entire Moreover, years age. he in stated Soto, mitigating circumstances.” factors, general he could other consider Soto, S.W.3d we ruled but would have much effect on his juror response of the “did not establish opinion. based, implied against bias” the defendant Thereafter, part, having he was there been no testimoni- informed al convicted, if inconsistencies between the officer’s tes- court that the defendant were timony lay and that of the witnesses. Id. penalty phase there would be a in which Also Sholler v. put Commonwealth would on evidence (Ky.1998), we ruled that it aggravation to obtain a sentence at the in failing was not an abuse of discretion high range end of sentencing and the juror strike a who was a Secret Service defense mitigating could introduce evi- Agent, because he “did not indicate a bias IQ, age, dence such as a defendant’s home defendants,” against although he “would child, drug life as a or substance abuse give tend to credence by him parents. or his The court then police officer.” notwithstanding, Id. This stated: defense, questioned by is, The question is there of that very admitted pro-law he was enforcement mitigators that’s described as placed police credence in substantial any bearing you that wouldn’t have all thought officers. When asked law setting penalty? Because some truth, enforcement told the he re- officers people say I can consider all of that know, so, plied, yeah, “I I think don’t I’ve people say evidence and some well no in in court.” experienced never one who lied my proper. again view that’s not And Id. at 708. past guilty guilty. we’re and not We recently revisited this We issue penalty are at the phase. ques- So the Shane, question, where the is, you tion is it evidence that Officer, Louisville Metro Police stated his you consider or is it evidence that officers would not association with wouldn’t consider? ability juror, impartial affect his to be an say: but then went on to stated, 119631then “I would consid- view”; it.” The Appellant’s point er court then denied had “an that he inside “absolutely” motion to strike that while pro-police; Juror 119631 for cause. else,” punishment he on the issue of “police just everybody are like be considered age only oath if the they did would lie under he would consider not believe and 11, they oath more seri- old. He years because took the or 12 person were that it more ously; and he would find factors such as he could consider some said police telling the likely that a officer was IQ or the kind of home the defendant’s lay raised, truth than a they witness. not he was but would which Nor did opinion. much effect on have Shane, result, As 243 S.W.3d at 337. use, that factors such as he believe held: abuse, of alcohol should be considered. Here, en- responses Juror 138’s in their that he tirety probability indicated “Any juror mitigating whom giving could not enter the trial both are ... irrelevant should be dis factors field. playing sides a level His state- cause, juror for that has qualified for “absolutely” pro-police ment that he was concerning an the merits opinion formed an officer that did not believe the evidence the case without basis and clearly lie under oath indicated would Illinois, developed Morgan at trial.” that a have little or no defendant would 739, 112 2235, 119 504 U.S. S.Ct. an testi- challenging chance of officer’s (1992). Thus, heeding L.Ed.2d juror’s mony in mind. this Shane, designed our recent dictates Id. only impartial jury, an but insure Shane, Soto, Considering Stopher, playing ensure a field” “level selec together, they support Sholler the conclu- jury, we must conclude that the tion sion that been Juror 119631 should have for failure to excuse Juror 119631 cause cause stricken for in this case. The state- an in this case. abuse of discretion by ments prospective made facts, no we can read Sham other On Soto, Stopher, were not as and Sholler way. unequivocal juror in as those made challenged also Juror case, Shane and who Juror 119631 Yet, dire, during voir cause. they testimony indicated would believe the it that he made clear would officer, a police simply he was a because range He penalties. consider the entire рolice police officer because officers evidence of indicated he would consider have greater credibility in their as as aggravating mitigating factors well However, than other witnesses. his expecta factors. When asked it was finding our directly contrasted tion that the defendant should show Shane —that “he did not believe penalty appropriate, death is not under took lie oath because However, replied, ‘Tes.” when asked seriously; their oath more and that he death un impose the defense if would likely would find more that a otherwise, him less defendant showed lay telling officer was the truth than a replied, Juror 123804 “No.” similarity appar- factual witness”—the Shane, ent. at 337. 123804’s an- argued Moreover, issue, mitigation improp- as to it clear that he would swers made juror’s responses erly impose form a burden on the defense dur- totality court, phase. The circuit penalty basis to conclude that he could reasonable however, totality mitigation all considered properly not consider juror’s appropri- He answers within that the law demands. believed context. The court reasoned only person’s history of violence should ate 616

while Juror 123804 n being answers indicated with such notice contained Id., Citing mitigating that if was going to be Miranda Miranda warnings. on, Arizona, the v. put logically by 436, 478-79, it would be done 384 U.S. S.Ct. defense, (1966). court 1602, 1630, the concluded this did 16 L.Ed.2d 694 not he improperly imposing indicate was reviewing challenge to denial of a burden on the defense. the court motion to suppress, this Court is faced clearly noted that Juror 123804 had indi- question with a mixed of law and fact. cated he would consider evidence of both Lucas, factors, and aggravating mitigating and Findings of fact are con- that he would consider the full range of if supported by clusive substantial evi- penalties. circumstances, Under these dence. Id. See also RCr 9.78. However, err, discretion, court not did or abuse its questions of law are de reviewed novo. denying Fugett’s challenge for cause Lucas, at 405. against Juror 123804. Shortly began, after the investigation Shane, however, on Relying we find the detectives victims learned in not excusing abused discretion shortly shooting been seen befоre the at cause,

Juror 119631 for and thus commit- person Chevron station with a known ted For error. reasons that such “sub- as Bosco. Detectives also learned that subject stantial errors” are not to “harm- Fugett, “Bosco” alias was an used and review, less error” we find the error to be jail marijuana he was in on unrelated cause for reversal. charges. Fugett from When was released custody p.m. on approximately 11:30 Suppress Motion

D. to 27th, January he was met Detectives argument fourth con Lawson and Seabolt who identified them- deny cerns the court’s decision to his mo Fugett selves and be willing asked suppress tion to he made statements to go to and police headquarters answer police. Fugett from asserts that the time questions. some The informed detectives jail headquarters he was taken go Fugett that did not and that have for questioning, custody he was in he was approximately free to leave. At entitled to Miranda his warnings. Since Fugett accompany 11:52 p.m., agreed to given approximate no were warnings until police headquarters. detectivеs ly 28th, argues 5:50 a.m. on the handcuffs, Fugett, rode in the without were statements obtained violation of headquarters. back of the detectives’ car to his right against self-incrimination. Fur through then him detectives escorted ther, argues Fugett that statements made a non-public a rear stair- up entrance his Miranda given warnings after he was commonly protect well—a method used tainted should be excluded as offices of identity of witnesses —to the fruit of poisonous tree. floor. Homicide Division the second unrestrained, led Fugett, The Fifth still to an Amendment was guarantees a his inter- Throughout U.S. Constitution defendant interview room. alone, view, See right against Fugett self-incrimination. often left was nev- Crossley, United States v. restrained, free use of F.3d er and was allowed (6th Cir.2000). restroom, Supreme exception The U.S. facili- ty suspect open public Court has determined that a under use. smoke. At interrogation given

custodial must be no also allowed to have sodas and right self-incrimination, question- no against tice of the time did ask that the Ray’s pocket sweat- into stopped, nor did he indicate desire reаched shirt, in self- a 9mm and shot pistol, to leave. took defense. During portion initial inter-

view, Fugett believe he had led officers to by the argues approach the used Fugett information shooting the and that he about ques- a in this case amounted to detectives the ac- investigation. assist in He technique tion and then warn which first knowledged he had at the Chevron been Seibert, v. rejected was Missouri that he one of the vic- station and knew 2601, 159 L.Ed.2d 643 U.S. S.Ct. tims. he claimed he could identi- (2004). case, disagree. In the Seibert We witnesses, aas vehicle fy possible as well the suspect police arrested Seibert as may As a that have been involved. result intentionally Initially, case. the officers disclosures, three detectives Mi- questioned giving him without him his accompanied Fugett through on a drive warnings. At the conclusion randa of Louisville at 4:30 approximately areas interview, systematic and with exhaustive unsuccessful, they were the a.m. When left, the incriminating potential little noor to the inter- Fugett detectives returned At the conclu- took short break. officers room await of Detec- view to the return break, then gave officers Sei- sion of had to tives Lawson Seabolt who left ex- warnings without bert his Miranda get Fugett. food for them and that his unwarned statement plaining Referring him. against could used not be the lead detectives were While statement, to re-inter- original officers out, Fugett room, ap left interview on all of the record until viewed Seibert detective, and indicated proached another responses repeated. On the earlier that for the first time he had been at the review, the Court concluded Supreme U.S. may have a role in scene and had Mi- police strategy undermined the approximately incident. It 5:25 a.m. was at warnings. randa 542 U.S. When lead detectives returned at 5:50 2612-13. The Court Seibert S.Ct. at a.m., Fugett given was his Miranda warn ob- then statements were concluded the his executing ings. After a waiver Fifth Amendment tained in violation of the rights, Fugett officers had informed he suppressed. have been should present shooting. been at the time of he person pulled While indicated another distinguishable case on its The Seibert ‍‌​‌​‌​‌​‌​‌‌‌‌​‌‌​​​​​‌​‌‌‌​‌​​‌​‌‌​​‌‌‌‌​​‌​​‌‌‍trigger, Fugett admitted had a sus- Fugett facts. was not arrestеd as agreed guns. hide After disclo subjected systemat- to a pect. Nor was sure, Fugett was arrested.5 ic intended to and exhaustive interview a.m., In- from him. Fugett approached incriminating Around 10:35 obtain details stead, admitted in as Fugett brought been was a witness officers and he had at he who been with the victims Fugett shooter. claimed shooting. up getting marijuana, Ray prior station looked Chevron Further, Fugett given the choice of shotgun had the aimed at him. As he and de- accompany Ray shotgun, Fugett over the whether he desired struggled Fugett police probable probable for his role in Fugett suggested lacked cause arrest has disagree. We At the cause to arrest. conclu- v. See Eldred incident. disclosure, knew he had sion (Ky.1994), overruled 906 S.W.2d and that he had hidden the been the scene part grounds in Commonwealth on other guns. tampering physical evidence is As Barroso, felony, persuaded police we are not lacked tectives. length portion the initial had led the officers believe he could due in large part interview was both identify identify witnesses a vehi- the fact led the officers to cle may have been involved. From believe he knew information and was will- the beginning, detectives informed ing to act in concert with their efforts to that it was his choice to come to headquar- solve the crime. It not until he volun- ters and questions. answer At no time tarily approached a detective 5:25 a.m. any was he way. restrained He re- may officers had idea he have had tained freedom to leave interview room Then, larger role in the incident. before fact, and to use the restroom. at no beginning systematic questioning, detec- time authority did assert over him or tives him properly provided with his Mi- physical threaten the use of force. Finally, randa warnings. Given distinction be- at deny by no time did officers a request Seibert, tween this case and we conclude Fugett stop either to the interview or to Fugett’s reliance misplaced. on that case is Thus, him reject allow to we leave. Fu- gett’s claim in custody that he was Crossley, As noted notice of accompanied moment he the detectives right against self-incrimination must headquarters to questioning. for given only suspect subjected when a is Fugett suggests to custodial that the coercive interrogation. F.3d at atmo- sphere By interrogation supports his claim that he 861. custodial we was mean custody. argument rejected This was “questioning initiated law enforcement Beheler, 1121, v. person after has taken 463 U.S. custody been into California (1983). S.Ct. 77 L.Ed.2d 1275 deprived or otherwise of freedom of action Beheler, any Lucas, recognized significant way.” “[a]ny Court that suspected interview of of a S.W.3d at 405. In Lucas we one crime went on to police officer aspects will have coercive to inquiry making “[t]he a custo it, simply by dial whether virtue the fact that person determination is police officer part was under or law enforcement formal arrest whether there system ultimately which may restraint freedom cause the of his or whether suspect to be with a charged there was a on freedom crime.” 463 restraint of move (Citation U.S. at at 3519 degree ment to the 103 S.Ct. associated with formal omitted.). Thus, Further, “[c]ustody arrest.” Id. the Court concluded “a does not until non-custodial situation is nоt converted to police, by physical occur form of some one in which authority, applies simply force or Miranda be- show of have restrained that, liberty reviewing cause a court of an Id. In concludes individual.” mak determination, even in ing formal absence arrest or must ask our movement, whether, restraint on freedom of “considering selves the surround circumstances, questioning in a place took coercive envi- person a reasonable Likewise, ronment.” Id. Miranda warn- would have believed he she was free to ings are not because the required ques- leave.” Id. tioning took place headquarters. at facts, Having reviewed the we do not Thus, at U.S. at 103 S.Ct. custody find prior was in to his Fugett’s atmosphere argument is coercive at time, arrest 5:50 a.m. Previous to that without merit. purpose questioning was to gather a final point information from witness who had As note we would out that with the at the interrogation been victims Chevron sta- definition of custodial fo- shortly incident, tion before the cuses on part who “words and actions on the not be 105 had seen was silver could police.” Watkins Commonwealth case, In this involved in the incident. one room Fugett voluntarily left interview moved court The Commonwealth approached 5:25 a.m. and approximately admissibility. as reconsider decision him to inform that he had a detective argued the evidence The Commonwealth fully Prior honest. to structured been corroborating re- lacked the circumstances disclosure, detectives questioning on this Rule under of Evidence quired warnings. Hav- gave Fugett his Miranda (KRE) 804(b)(3). The Commonwealth ing conducted a de novo review on this claimed he pointed out that while Johnson issue, we conclude the did not err victims, appeared not a friend of the denying Fugett’s suppress motion he was. thought statements. attempting suggested they Fugett replied impress Johnson. Admonishing Jury E. corroborating circumstances sufficient Disregard Evidence Fugett suggested the victims been shown. argument relates to last lie, believed no reason to had court’s to evidence the exclude decision friend, the talking to a that they were may in posses that the victims have been spontaneous, tо be appeared disclosure pistol prior to sion stolen 9mm months Ray have access and that did not unlimited that disputes the incident. No one the fact guns belonging the to Davison. to only guns following the recovered the inci arguments, the the considering After and a shotgun gray dent were dark corroborating circum- court concluded pistol. 9mm black and it stances were absent reversed Davison, shotgun belonged to The Steve In to addition the Common- decision. long-term relationship a man who had a there arguments, the court noted wealth’s Ray’s Davison, formerly a mother. actually gun no that the evidence dealer, many licensed firearms retained Further, the court felt stolen. guns, 9mm How- including pistols. several Da- stronger been argument would have ever, pistol the 9mm from recovered pistols. had not several 9mm vison owned Fields was owned It had Davison. satisfy had to Having found faded Anthony during been stolen from Jenkins 804(b)(3), KRE the requirements the burglary prior the shoot- four months to the jury disregard the to court instructed ing. evidence. Fugett attempted to introduce evidence trial, admissibility evidence cоncerning During The pistol. a third 804(b)(3) is left the discre under KRE clerk the Chevron station stated generally Unit Ray incident and Rob- tion of the trial court. See months before the Guillette, 743, 754 v. 547 F.2d pistol had him a ed States bins shown Cir.1976). 804(b)(3) (2nd creates an In KRE response claimed to have stolen. hearsay state argued exception to the rule for objection, Fugett Commonwealth’s In case of against interest. the the the Commonwealth’s ments evidence rebutted interest, rule against penal 9mm theory brought the stolen statements to ex tending the court states statement pistol drug Initially, “[a] sale. clerk, liability is Johnson, to criminal pose the declarant agreed allowed corroborating cir unless testify. developed, As the not admissible trustwor- clearly indicate the apparent pistol that the Johnson cumstances became thiness lie, of the statement.” The burden appeared of motive and that to be establishing requirements under bragging. the court pointed out rule rests proponent with the of the state- surrounding that the circumstances failed ment. support Fugett’s interpretation. court noted no there was evidence confirm- Court, in Crawley This ing pistol to Johnson shown was actu- adopted ap broader ally stolen. Finally, supported record proach used the federal rules evalu possessed conclusion that Davison sev- ating against declarations interest. pistols. circumstances, eral these Under 5.W.2d Crawley, we cannot court abused its discre- Court, citing to Chambers v. Missis tion when it concluded had failed to sippi, U.S. S.Ct. corroborating establish the circumstances (1973), L.Ed.2d 297 set out four consider 804(b)(3).6 required under KRE ations relevant to the trustworthiness of 804(b)(3), statements under KRE includ IV. Conclusion “(1) ing: the time declaration and the Having in denying found the erred (2) made; party to whom the existence of Appellant’s challenge for cause as to (3) corroborating case; his convictions and sentenc- extent to which declaration really herby are reversed and this matter is against interest; penal the declarant’s remanded for proceedings further consis- (4) availability [and] the declarant as tent herewith. Guillette, witness.” Id. As noted these factors are not intended to be ex LAMBERT, C.J., MINTON, NOBLE, haustive or absolute. 547 F.2d at 754. JJ., SCHRODER, and concur. Thus, the court consider totality must “the J., CUNNINGHAM, by separate dissents circumstances, including the not only ABRAMSON, J., opinion. not sitting. surrounding the circumstances the making statement, Opinion CUNNINGHAM, but also other Justice at trial that concurring corroborates the truth of in part dissenting part. the and in dissenting statement.” opinion See in While I majority believe the has re- Harrison v. Commonwealth 858 S.W.2d solved most of issues in a Fugett’s logical 172, 180 (Ky.1993). manner, appropriate and I disagree with A Fugett’s review of the handling the record confirms that the claim that the trial court applied appropriate circuit court its discretion in failing factors abused grant when considered this issue. The court a strike motion to Juror 119631 was free accept majority Commonwealth’s for cause. issue led the As this interpretation. conviction, particular, In the court to reverse I must dis- agreed may sent. declarants have had a Fugett

6. argued compound- they has the court knew gun also had a when drove to surrounding ed the errors evidence as to agree the scene. We with the circuit court's weapons by allowing the Commonweаlth to interpretation stip- that the Commonwealth’s concerning cross-examine her Fields initial simply acknowledged ulation Fields had made pistol a pos- statement had in his a with statement inconsistent her initial state- session him when she drove to the Clarion such, agree the ment. As Commonwealth Fugett argues Hotel. the Commonwealth was was able to raise the inconsistent statement precluded raising prior inconsistent during cross-examination Fields. See KRE they stipulated statement because had Fields 613. denying a made statement the fact that she had Department, Police majority that when the Louisville “[c]on- reasons Shane, suspected shooting after a acquitted been sidering Stopher, Soto Sholler that he they 119631 stated together, support drug the conclusion dealer. Juror job police and the respect been stricken for a 119631should have lot of Juror a asserting at than slip opinion firmly in this case.” See do. Rather cause I can be lie under disagree. I believe Shane distin- would not that officers belief and, thus, oath, not mandate this more does took the oаth guished or that officers reasoning witnesses, I believe seriously lay result. than Soto, Stopher, this in applied questions, agreed Court leading response supports my conclusion given Sholler to the testi- more should be weight did circuit court not abuse discretion police officer and that mony police denying to strike Juror 119631 motion sharp- This credible. contrasts were more for cause. went on to ly with the Shane who likely find it say “he would more Shane, juror being challenged In telling truth than officer was by the same employed an officer or- was Shane, at lay quoting witness.” Id. ganization assigned to same dis- supra. testifying in the case. trict as officers 336-37, (Ky.2007). Fur-

See 243 S.W.3d distinctions I also these factual believe ther, prospective juror personally our rea place case more line with knew the officers. While Soto, soning in and Sholler. Stopher, stated did not believe his rela- Shane Sholler v.

tionship position or his witnesses agent was retired Secret Service department with the would affect his abili- juror ad jury pool. The member of the ty impartial, to be he did indicate very pro-law еnforcement mitted view”;

he had “an that he point inside substantial give and indicated he would “absolutely” pro-police; that while Fur police. credence just are “police everybody ther, like else” he if all asked law enforcement truth, did not believe would lie under oath “I juror replied, officers told the they so, know, because took the oath more seri- never yeah, I think I’ve don’t ously; and find that he would it more In experienced one who in court.” lied likely police telling that a officer was the decision to finding error court’s no lay cause, truth than a witness. for this Court reject challenge a juror’s did not that the answers concluded Shane, slip opinion quoting See at defendant, at the Id. against indicate bias at S.W.3d 337. v. Common 708-09. See also Sanders facts When the in the case before us are (that wealth, (Ky.1990) Shane, I compared to those in believe the county of juror officer in the police was a distinction is clear. Juror 119631was nei- testifying knew several trial and of officer, police employed ther a nor was bias). officers not establish did departmеnt working with the by the Commonwealth, Likewise, in Soto officers who testified. unlike Shane, juror this Court concluded in Juror 119631 S.W.3d at prospective jurors know, surrounding prospective facts personally not nor did he have did against the defen- relationship did not bias the officers who tes- establish with knowing Rather, acknowledged by the dant. reached conclusion tified. as We juror police that his one knew members of majority, Juror 119631 stated stating he cousin, juror another department, of second former member wife’s might give weight first, more to the testimony events: a helpful as witness who police of over that a lay second, of witness. police; bystander could assist aas Stopher v. at present only at the crime whose partic- 797, the prospective juror acknowledged ipation was hiding weapons at his father had been a police officer. The request; finally, shooter’s as a partici- juror went on to that he “did pant not have in the drug sale who shot in self- any preference police for ... officers and defense. family his connection to the law enforce- witness, Fields, While one stated at trial profession

ment would no manner affect police that she had not told Fugett had a ability to decide the case based on the hotel, pistol went to the this is presented.” not a case of the of police word versus the statement, cases, lay In all word of a three of these witness. Fields’ prospec- jurors’ given relationships receipt rights, tive after of her Miranda with law enforce- January 28, Thus, ment was recorded on were closer than those present dispute case in effect the juror before us. was between the ini- Stopher While indicated that tial recorded relationship words Fields and her sub- not ability sequent testimony affect his to decide the case trial. Under these before Soto, him, circumstances, the other as in supra, cases involved there are who no pro-law indicated testimonial between the enforcement inconsistencies give credibility testimony testimony lay and would officers’ and the testimony police my witnesses. This reinforces distinguishes officers. What conclusion ‍‌​‌​‌​‌​‌​‌‌‌‌​‌‌​​​​​‌​‌‌‌​‌​​‌​‌‌​​‌‌‌‌​​‌​​‌‌‍that the given by these cases and answers the case before us from only response leading questions, is degree Shane not more which juror views, weight given should be expressed these but also police police the fact that the officer and that prospective simply were more credible, simply did not did not create an believe officer-would lie uneven playing Fugett. under oath. The field prospective went further and stated that he believed it was majority expresses concern over likely more that a police officer was telling whether responses Juror 119631’s indicate the truth than laya witness. These state- he could not consider mitigating evidence. ments directly focus on the playing level I disagree. ju- I believe a review the sought field we in Shane. This circum- simply ror’s answers indicates his lack of simply stance present the case knowledge concerning aggra- as to the law us, before nor present did we find it in vating mitigating factors and evidence. Soto, Stopher, and Sholler. Those answers also indicate surprise things, age some such as and sub- majority point makes the аbuse, mitigat- stance can be considered as keys that one of the to our decision in Soto ing factors. As this noted in Court Mabe our conclusion that there were no v. Commonwealth testimonial inconsistencies between the of- testimony ficers’ lay and that of witnesses. Voir dire examination a occurs when I believe this same reasoning applies prospective juror quite lit- properly has majority case. The point fails to tle or no information about the facts of any only inconsistencies between the testimo- the case and vague most idea ny of officers and the applicable about the law. At time such lay juror witnesses. has not presented contested a is often with the facts changing substance of his version of in their if light harshest and asked rea- imposition

could consider of a minimum Juror 119631 for cause based Many jurors find it diffi- son. punishment. minimum punishment cult to conceive of majority, As noted given suggest only the facts as

when that “a long recognized has Similarly, punishment. most severe determination as to whether to exclude many citizens are astounded to learn lies within the sound juror. cause being drugs under the influence of court, trial and unless discretion of the may or alcohol be considered them as action of the trial court is an abuse mitigating punishment factors which erroneous, clearly or an of discretion is imposed. Predictably, should not the trial appellate court will reverse being asked under whether believe Pendleton v. court’s determination.” mitigate the influence punish- should (Ky. S.W.3d ment, the nega- answer is often 2002) (Internal quotes and citations A per disqualification tive. se is not omitted.). See also Soto v. Common required merely juror does because wealth, (Ky.2004) 139 S.W.3d instantly every legal not embrace con- (“A determination whether to excuse cept presented during voir dire examina- juror for cause lies within he sound dis juror tion. The test is not whether a cretion of the trial court and is reviewed agrees with the it presented law when is discretion.”). only for a clear abuse of in the most extreme manner. The test majority at 9-10. The slip opinion See whether, having after heard all of the recognize that goes on to evidence, prospective can con- for cause the decision to exclude form his views to the requirements of circum- totality is based on the impartial law render a fair and stances, any on a one response not verdict. question. Morgan See Common- (Ky.1994). wealth, overruled in S.W.3d part grounds by on other Shane v. Com- us, In the case before the circuit court monwealth, 243 S.W.3d 336 gave examples and asked Juror 119631 if recognizes duty This of the trial he could mitigation. consider evidence of pro- court “to evaluate the answers Juror 119631 indicated he would consider light spective context and evidence, but could not whether he juror’s knowledge of the facts automatically would give penalty a certain Stopher, 57 understanding of the law.” mitigating there was evidence. When at 797. rephrased the court question terms being in a group who could take the circuit my Id. It is belief that the court’s consideration, being evidence into in a an simply decision does not amount group simply give any who possibil- abuse of its discretion. While the consideration, Juror 116931 indicated us, sitting one as a ity еxists group he would be in the that could consid- judge, may trial have reached a different everything presented. er conclusion, this is not the standard 119631indicated that he could consider the judge The fact this trial review. range penalties. light considering full of of the reached another result after answers, answers, totality juror’s I am unable totality of Juror 119631’s asked, ju- circuit discre- and the questions court abused its forms of the time, at the denying Fugett’s knowledge tion in motion to strike ror’s of law defendant, a simple er- is not task. This reali- simply does not amount to reversible ty brings ror. us back to the current case be- given judges ample fore Trial must be us. seriously I am also concerned that this in their dire of leeway and deference voir decision, our coupled holding with jurors. of There must be suf- types these Shane, place pressure upon too much will give judge’s ficient and take so that the judges dealing trial when with the our evaluated one or determination not very difficult and inexact science of select- jurors. two or answers of the comments fail” This jurors. case will resonate every judge Judge with triаl in this state. reasons, respectfully I dissent For these struggled Abramson troublesome majority from the decision reached prevalent issue is even more in the affirm would conviction jurors rural areas of state where are Jefferson Circuit Court. know law likely more witnesses and personnel enforcement involved a case. that many

It is a far notion not fetched

persons members of the law enforce- hold to a profession higher

ment standard than case,

ordinary If citizens. that is these jurors, persons, serving

same when as reasonably give be inclined to more weight to the of law enforce- Kentucky, of COMMONWEALTH Indeed, personnel. ment it would make Appellant, orderly society for a more wholesome and if law cadre the star of our enforcement brightly shone so all of us would have MARR, Appellee. D. Ronald

more confidence their word than we would in the word the rabble and the No. 2003-SC-000564-DG. fact, many rude. If there are who do. Kentucky. Supreme Court an area where this dilemma is Perhaps lay concerns most acute witnesses with April jurors prospective whom are familiar.

Again, likely is most to occur in rural It

areas the Commonwealth. seems initially give no

me to ask

greater weight statements some- knows, remotely,

one or she even common stranger

than a rank defies ways of the world. This

sense and whammy a double

problem can become and acquain- are ‍‌​‌​‌​‌​‌​‌‌‌‌​‌‌​​​​​‌​‌‌‌​‌​​‌​‌‌​​‌‌‌‌​​‌​​‌‌‍both friends sheriff, leading

tances of the law en- state, and a wit-

forcement officer case.

ness jurors in

How with these citizen to deal way jury our panels which does bleed interest

dry, yet balances the

Case Details

Case Name: Fugett v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Apr 24, 2008

Citation: 250 S.W.3d 604

Docket Number: 2006-SC-000051-MR

Court Abbreviation: Ky.