JOHN D. ELLIS v. COMMONWEALTH OF KENTUCKY
2023-SC-0096-MR
Supreme Court of Kentucky
JUNE 13, 2024
RENDERED: JUNE 13, 2024; TO BE PUBLISHED; ON APPEAL FROM SIMPSON CIRCUIT COURT, HONORABLE RODNEY BURRESS, SPECIAL JUDGE, NO. 21-CR-00147
APPELLEE
OPINION OF THE COURT BY JUSTICE CONLEY
REVERSING & REMANDING
This appeal comes before the Court as a matter of right1 from Simpson Circuit Court. The Appellant, John Ellis, was convicted by a jury of first-degree rape, second-degree burglary, and kidnapping. He was sentenced to fifty years in prison. Ellis raises only one issue: that the trial court erred when it failed to suppress his incriminating statements. He argues that these statements were made during a custodial interrogation, and he was not properly given Miranda warnings; that his girlfriend was an agent of the state when he made the incriminating statements to her; and that the Commonwealth illegally recorded his conversation with his girlfriend. We agree that Ellis was in custody and not properly informed of his rights according to Miranda. We further hold that the police failed to adhere to the acknowledged invocation of counsel by Ellis.
Consequently, his statements should have been suppressed but were played at trial. This error was not harmless; therefore, we reverse his convictions.
On May 5, 2021, John Ellis appeared in a hospital reporting symptoms of a stroke. He was 65 years old at the time. Ellis was the subject of a missing person report, so Detective Jonathan Johnson went to the hospital, along with Detective Jonathan Carlock. Ellis had been missing for two or three days, and his disappearance coincided with the rape of Ashley.2 Johnson testified that he believed Ellis was “somehow involved” but denied that he was suspected as the perpetrator. Ellis was requested to meet with the officers the next day at the Kentucky State Police post regarding his being missing. Ellis agreed. The next day, Ellis, and his girlfriend of approximately forty years, Margaret, came to the station. Margaret is the sister of Ashley. Ellis was escorted to an interview room and Margaret was left in the lobby.
Prior to the interview beginning a video camera was turned on to record the entirety of the interview. Ellis was never informed the video camera was recording. Johnson can be heard talking to another officer about his intention to get a buccal swab “pretty soon.” We highlight this fact now because it is arguably inconsistent with Johnson‘s testimony at the suppression hearing. At that hearing, Johnson denied that Ellis was a suspect in the rape case until approximately two hours into the interview, at which point he was given his
The interview room‘s exact dimensions are not known but the video shows that it is compact, only large enough for a small table and a handful of chairs. Ellis was seated on the far side of the table from the door and was
In the first hour of the interview there was nothing inculpatory stated and the questioning was normal and more or less relevant to the missing persons case, although questions about his whereabouts obviously pertained to the rape case as well. It was not until the end of the first hour that Johnson began questioning Ellis about his relationship with Ashley, including whether he was attracted to her. Then the detectives left the room for approximately ten minutes. When they came back, Johnson entered into a discourse about DNA as a preface to informing Ellis that his DNA had been matched to that found on Ashley after her rape. This was not true. The detectives then became accusatory in their questioning. Johnson stated that Ellis was treating them like “dumb cops,” but that he “wanted to help you.” Both officers then told Ellis that physical evidence would have more weight in court than Ellis’ protestations of not remembering what happened. Detective Carlock told Ellis that he wanted him to keep denying that he remembered anything so he could take the physical evidence to court and let a jury decide what would happen to him. On the other hand, Carlock said, Johnson wanted Ellis to tell his side of the story to help him. Ellis then asked to see Margaret and was refused.
Approximately five minutes later, Johnson brought Margaret into the interview room. Johnson told Margaret she was brought in to “keep her in the loop,” and that “we‘re done talking to him as far as questions because he‘s requested an attorney,” and that “we can‘t do anymore interviewing.” Johnson then told Margaret that Ellis’ bank statements and phone records placed him in Denver, Colorado. He also told her that Ellis’ DNA matched the semen found
Margaret, as a reminder, is Ellis’ girlfriend of forty years and Ashley‘s sister. As Johnson later testified at the suppression hearing, he told her all these things hoping that she would question Ellis and “elicit a response.” Margaret immediately began questioning him, “John, surely you didn‘t?” Ellis gave a response of what he claimed to recall, which was not incriminating, but generally denying that he remembered a rape or even going to Ashley‘s home.
Johnson then further engaged Margaret, telling her that Ellis had handcuffs and that the rapist had tried to handcuff Ashley. Johnson stated that normal people do not carry around handcuffs and that when they go to someone else‘s house with handcuffs the “intent is there, wouldn‘t you agree?” Margaret readily assented. Johnson and Carlock testified at trial that the handcuffs were in fact never recovered. After further emotional appeals by Johnson to Margaret, she then addressed Ellis, stating, “John, I just can‘t even imagine why you would do that. Why‘d you take my car and go to [Ashley‘s] in the middle of the night?” Ellis replied, “I don‘t remember, [Margaret]. I
After Johnson summarized Ellis’ flight records5 for the prior two days, Ellis stated, “I would do nothing to hurt her.” Johnson addressed Margaret, “I know he says that but how does his DNA get on her?” The conversation continued along these same lines for another few minutes and Johnson then left but the video recording continued. Margaret began questioning Ellis:
Margaret: You think you raped [Ashley]?
Ellis: No, I don‘t . . . I don‘t remember doing it if I did it, [Margaret].
M: And you took my car over to her house. Why did you fly to Denver? You bought a plane ticket and went to Denver.
E: I don‘t know.
M: And tried to get money in Denver. Were you trying to escape?
E: I was scared, I guess.
M: Scared of what? What were you scared of?
E: I don‘t know.
M: That you would get caught?
E: I guess, I don‘t know. I was just really, really confused.
M: John, you know what‘s going to happen?
E: Go to prison, I guess.
M: Yes, you are.
E: The only reason to come back [inaudible].
M: [Inaudible]... Do you think you just got drunk, that you just went crazy and did this?
E: I think I did, [inaudible].
Discussion continued about making plans while Ellis would be in jail, at which point the conversation went,
E: It was just a bad, bad mistake.
M: It‘s worse than a mistake. It‘s my sister.
E: I understand that.
M: Did you get drunk?
E: You know I wouldn‘t hurt her more than anything in the world.
M: Why did you break in her house?
E: I got drunk.
M: Why did you even think of that?
E: I don‘t know. I have no idea.
After some more conversation,6 Johnson came back into the room and stated, “At this point, you‘re not free to go.” Ellis replied, “I figured I wasn‘t.” Ellis was given his Miranda warnings by Johnson, and both were told that Ellis would be arrested that day. Ellis was subsequently arrested by the end of the interview.
At trial, Ellis made a motion to suppress the entirety of the interview as being a custodial interrogation and for lack of proper Miranda warnings. A suppression hearing was conducted. Some of the testimony from that hearing
After a four-day trial, Ellis was convicted as noted above and the present appeal followed. We now consider the merits.
II. Standard of Review
The warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), only apply when a person is in custody. “Custodial interrogation has been defined as questioning initiated by law enforcement after a person has been taken into custody or otherwise deprived of freedom of action in any significant way.” Commonwealth v. Lucas, 195 S.W.3d 403, 405 (Ky. 2006). “The test is whether, considering the surrounding circumstances, a reasonable person would have believed he or she was free to leave.” Id. “The term ‘interrogation’ under
When, as here, a motion to suppress has been filed in the trial court the issue is preserved. Our review is a mixed question of law and fact. Lucas, 195 S.W.3d at 405. We review the trial court‘s findings of fact for clear error and the application of law de novo. Hernandez, 671 S.W.3d at 223. Although the specific argument that the police failed to adhere to Ellis’ invocation of counsel was not made in the appellate briefing before this Court, it was preserved in Ellis’ motion before the trial court. We have held that so long as we confine our review “to the record . . . no rule of court or constitutional provision prevents it from deciding an issue not presented by the parties.” Priestly v. Priestly, 949 S.W.2d 594, 596 (Ky. 1997) (citations omitted). Moreover, we recently clarified in Gasaway v. Commonwealth, that we “review issues, not arguments.” 671 S.W.3d 298, 313 (Ky. 2023)
III. Analysis
A. Failure to Adhere to Ellis’ Invocation of Counsel
We deem it unnecessary to make a custodial analysis. The trial court never made an explicit finding of when Ellis was in custody. It did, however, make a finding that when Ellis stated, “I think I need a lawyer,” that was a sufficient invocation of counsel. Since the Miranda right to counsel only applies in a custodial setting, Lucas, 195 S.W.3d at 405, the trial court implicitly found Ellis was in custody by that point in time and we accept that conclusion. The trial court erred by failing to follow the implications of recognizing an invocation of counsel.7
The rule of Edwards v. Arizona is clear that once a suspect invokes the right to counsel the interrogation must cease. 451 U.S. 477, 484 (1981). “Once the right to an attorney has been invoked, interrogation must cease, and law
The actions of Johnson in bringing Margaret into the interview room, where he then conducted a three-way conversation between himself, Margaret, and Ellis, repeatedly reviewing a litany of false evidence against Ellis (including DNA evidence) is a functional equivalent of interrogation designed to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 300-02 (1980). This is an objective analysis that looks at both the police and the suspect. “[T]he definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Id. at 302. But “[t]he latter portion of this
B. No Harmless Error
Violation of a constitutional right does not, however, necessarily result in the reversal of a conviction if we find the error to be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967). In Staples v. Commonwealth, we explained this analysis as follows:
Harmless error analysis applied to a constitutional error, such as the Confrontation Clause violation addressed in Crawford, involves considering the improper evidence in the context of the entire trial and asking whether there is a “reasonable possibility that the evidence complained of might have contributed to the conviction.” Talbott v. Commonwealth, 968 S.W.2d 76, 84 (Ky.1998) (quoting from Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). A properly preserved constitutional error is reversible, in other words, unless it was “harmless beyond a reasonable doubt.” Id. (citing Chapman). The question is not simply whether there was sufficient evidence to support the conviction aside from the improper evidence. The question, rather, is whether the improper evidence was of a weight, was of a striking enough nature, or played a prominent enough role in the Commonwealth‘s case to raise a reasonable possibility that it contributed to the conviction.
454 S.W.3d 803, 826-27 (Ky. 2014).
While Staples involved a Confrontation clause issue, we have applied this test to Miranda violations. See Quarles v. Commonwealth, No. 2016-SC-000684-MR, 2017 WL 6379446, at *3 (Ky. Dec. 14, 2017) (holding that statements obtained following invocation of counsel in violation of Miranda were harmless beyond a reasonable doubt). The erroneous admission of incriminating statements may, thus, be harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24.
If so, the convictions of Ellis can be affirmed. But the summary of evidence at trial, based upon the opening and closing statements, inexorably leads to the conclusion that the Commonwealth‘s case against Ellis was largely circumstantial and it was Ellis’ statements which were the centerpiece of its case. No DNA evidence linking Ellis to the crime was presented at trial. No tire track evidence matching Margaret‘s Ford Edge was presented. No records
With respect to the dissent, the Supreme Court of the United States has set the standard for harmless error when a constitutional right is violated: “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Chapman, 386 U.S. at 23 (quoting Fahy v. State of Connecticut, 375 U.S. 85, 86-87 (1963)). Importantly, that test has always been understood as substantively different from the state-level harmless error test for non-constitutional errors when “upon a consideration of the whole case . . . there is a substantial possibility that the result would [not]
But where, as here, an involuntary confession constitutes a part of the evidence before the jury and a general verdict is returned, no one can say what credit and weight the jury gave to the confession. And in these circumstances this Court has uniformly held that even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment.
Payne v. Arkansas, 356 U.S. 560, 568 (1958). The Supreme Court would later make it inarguable that it believed Payne to specifically reject the proposition that a conviction could be sustained but for the erroneously admitted confession if the rest of the evidence would be sufficient unto itself to sustain the conviction. That proposition, which is the one the dissent indulges,
the Court rejected in Payne [and] is not the harmless-error analysis later adopted in Chapman, but a much more lenient rule which would allow affirmance of a conviction if the evidence other
than the involuntary confession was sufficient to sustain the verdict. . . Such a test would, of course—unlike the harmless-error test—make the admission of an involuntary confession virtually risk-free for the State.
Arizona v. Fulminante, 499 U.S. 279, 309 (1991).
Combine this with the fact that prejudice is presumed in constitutional errors, Chapman, 386 U.S. at 24, and it is clear from that this record that the erroneously admitted admissions of Ellis did contribute to his conviction. We concede Ellis’ statements were not a confession per se and have referred to them as “admissions” throughout this opinion. Nonetheless, they were highly incriminating admissions that were as close to a confession as one could come without confessing. That distinction, however, is largely irrelevant because the dissent agrees a constitutional error has occurred and the harmless beyond reasonable doubt applies. Although we cannot know what went on inside the jury room, much less inside the minds of the jurors, we know for a fact that the jury requested to review some of his statements during deliberation and were allowed to do so. That is the best evidence for contributing to the conviction as a reviewing court will ever get. Applying the constitutional harmless error test correctly leads to the conclusion that Ellis’ convictions must be reversed.
IV. Conclusion
John Ellis was in custody and remained in custody approximately an hour after his interview began. Johnson acknowledged openly and repeatedly that Ellis had invoked his right to counsel under Miranda. Johnson was therefore bound to adhere to the procedures mandated by the Supreme Court
VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell, JJ., sitting. VanMeter, C.J.; Lambert, and Nickell, JJ., concur. Keller, J., concurs in part and dissents in part by separate opinion in which Bisig, J., joins. Thompson, J., not sitting.
KELLER, J., CONCURRING IN PART AND DISSENTING IN PART:
Respectfully, I concur in part and dissent in part. I concur with the Majority‘s holding that all of Ellis‘s statements made subsequent to his invocation of his right to counsel should have been suppressed. His “right to cut off questioning”
However, the erroneous admission of statements admitted in violation of Miranda v. Arizona, 384 U.S. 436 (1966), does not result in an automatic reversal of Ellis‘s convictions. If the admission of those statements was harmless beyond a reasonable doubt, Ellis‘s convictions will stand. See Ordway v. Commonwealth, 391 S.W. 3d 762, 772 (Ky. 2013). In other words, we will only reverse Ellis‘s convictions if “in the context of the entire trial . . . the improper evidence was of a weight, was of a striking enough nature, or played a prominent enough role in the Commonwealth‘s case to raise a reasonable possibility that it contributed to the conviction.” Staples v. Commonwealth, 454 S.W.3d 803, 826-27 (Ky. 2014). I do not believe that Ellis‘s erroneously admitted statements made to Margaret rise to this level, and, therefore, I dissent from the Majority‘s reversal of Ellis‘s convictions.
Ellis‘s trial spanned four days during which he was zealously represented by competent and capable counsel who subjected the Commonwealth‘s witnesses to vigorous cross-examination and presented compelling expert testimony. However, significant circumstantial evidence of Ellis‘s guilt, as is detailed below, was admitted so that the erroneous admission of his statements was harmless beyond a reasonable doubt. In short, the jury heard evidence from which they could infer that Ellis had made a copy of the front door key to Ashley‘s house. They heard evidence that Ellis often touched Ashley in a way that made her feel uncomfortable and said things to her that were
inappropriate. They saw evidence that Ellis had an injury to his face consistent with the injury Ashley‘s assailant likely would have sustained from her kick. They heard that Ellis had handcuffs in his garage which disappeared when he fled to Texas after the rape. Finally, they heard evidence Ellis had confessed to committing the crime, and this confession included several details that anyone unfamiliar with the crime would be very unlikely to know. Given all of this, I simply cannot conclude that there is “a reasonable possibility [Ellis‘s erroneously admitted statements to Margaret] contributed to the conviction.” Id. What follows is a thorough review of the evidence admitted at trial.
Ashley, the victim in this case, was 80 years old when she was raped in her own home. According to her testimony at trial, an unidentifiable assailant entered the room in which she was sleeping at approximately 2:00 a.m. She awoke to a noise and turned over in the bed to see a man, dressed in all black with a face covering, coming into her room quickly. The room was very dark, with the only light coming from a streetlight outside of a window. The man walked around her bed, grabbed her arms, and attempted to place handcuffs on her wrists. She fought against the handcuffs, receiving injuries to the lower parts of her arms in the process, until the handcuffs fell, and the man abandoned his attempts to handcuff her.
The man then began holding her down while she continued to fight back. She grabbed at his face and felt that he was wearing glasses. As the jury would observe, Ellis also wore glasses. The man started to take off her pajama pants, and she kicked him as hard as she could in the side of the face. The man
After removing Ashley‘s pessary, the man again attempted to insert his penis into her vagina, but he was unsuccessful at first, because he did not have an erection. He eventually obtained an erection and penetrated Ashley‘s vagina with his penis while pushing her against her headboard and holding her legs above her head.
Ashley believed the man ejaculated and may have worn a condom, although she admitted that she did not know when or how he would have put the condom on and, in fact, had never had sexual intercourse with a condom before in her life. She further explained that the rape was very painful, and she believed the man‘s penis was large. She conceded, however, that she had not
Ashley further testified that her assailant never spoke to her. She testified that she believed he did this because he was afraid that she would recognize his voice. Instead of speaking, when the man wanted her to be quiet, he waived his finger in front of his face. Ashley explained that this was a hand motion Ellis had made to her multiple times in the past. Ashley also testified that she smelled a distinct scent when her assailant was near her. It was a scent that was “odd” and with which she was not familiar. She had known Ellis for over 40 years and had a significant relationship with him, and yet she had never smelled the scent before. Ashley denied that the scent smelled like alcohol or body odor or anything else that she recognized.
After the rape was completed, the man rubbed Ashley‘s chest before picking up her cell phone and leaving the room. Ashley remained quiet and still in her room for several minutes before running into another bedroom to put on another pair of pajama pants. She believed her assailant had taken her cell phone, so she was not able to call for help herself. She waited in the other bedroom for a little while longer before finally running outside. She hid behind shrubbery and then ran to a neighbor‘s house.
She banged on the neighbor‘s door, yelling for help. The neighbor answered, let her into his house, and called 911. The neighbor testified at trial that he saw blood and other injuries on her arms. He further stated that when Ashley arrived at his house, she appeared very scared and very distraught.
Ashley was taken by ambulance to the hospital. At the hospital, she underwent an examination by a sexual assault nurse examiner who noted injuries to her vaginal area. Many of Ashley‘s family members came to the hospital to support her and check on her. However, Ellis did not. Ashley testified that she thought this was very usual, as she would have expected him to be one of the first people there. She testified that she thought he cared about her. She believed he was a friend and viewed him as a brother-in-law, so his absence was notable.
Ashley was interviewed by Detective Carlock while at the hospital. She told Detective Carlock that she did not know who had raped her. She admitted at trial that she could not identify even what race or ethnicity the person was and only described him as a “big” man. Ashley also told Detective Carlock that she has a routine every night during which she watches a certain television show and then locks all of the doors to her house. She was adamant that she was certain the doors were all locked that night.
After interviewing Ashley, Detective Carlock, joined by Detective Johnson, went to Ashley‘s home. Simpson County Sheriff‘s deputies were already there and had cleared the scene. Detectives Carlock and Johnson first walked around the outside of Ashley‘s home. They noticed tire tracks in the mud next to Ashley‘s driveway and unsuccessfully attempted to get impressions of those tracks. Detective Johnson testified that he also noticed Ashley‘s garage door was slightly open but not enough that a person could have slid under it in order to gain access to the home. The detectives both
Both detectives testified that they saw no signs of forced entry to the home. Detective Carlock testified that he first thought, despite Ashley‘s protestations otherwise, that Ashley had just forgotten to lock one of her doors. Ashley, however, stated, in no uncertain terms, that she “always” locked her doors. She further explained that her basement doors included a slide-type lock that could not be opened with a key.
Both detectives further testified that Ashley‘s home was very clean and well maintained. They testified that the room in which the rape occurred was obvious to them because it was the only room where things seemed out of place. They testified that the bed sheets and comforter were thrown partly off the bed, clothes were on the floor, and there was blood on the bedding. In that room, the detectives recovered Ashley‘s pessary, but they did not recover handcuffs. They further testified that one dresser drawer was slightly open in a second bedroom, which was the room in which Ashley went to get another pair of pants before running to the neighbor‘s house. Additionally, Detective Carlock testified that in the bathroom, the toilet seat was up, and there was urine in the toilet. He testified that there was a hair and some urine on the rim of the toilet. He explained that these findings made it clear to him that a man had
While inside of Ashley‘s home, detectives found her phone sitting on a chair near the front door. After Ashley and some members of her family had an opportunity to return to the home and look around, they all reported that nothing was taken or missing. Detective Carlock testified that he eventually came to believe that Ashley had, in fact, locked all of her doors and that perhaps a key had been used to gain entry. Detective Carlock also noted during his testimony that Ashley lived in a nice neighborhood that was not on a main road, and thus was not especially easy to find. Given all of these circumstances, police believed that Ashley‘s assailant was someone that she knew.
Despite speaking to multiple family members, detectives were unable to identify any obvious suspect. A man who had done some work at Ashley‘s house was mentioned, but he was quickly eliminated as a suspect. Ashley‘s house backed up to a golf course at a country club. Police obtained surveillance video from the country club that showed what they believed to be car headlights in Ashley‘s driveway during the time of the rape. The video showed headlights in Ashley‘s driveway at 2:22 a.m. and again at 2:56 a.m., presumably showing the perpetrator arriving and leaving Ashley‘s home. Neither the make and model of the car nor any occupant of the car can be determined from the video.
Detectives also collected Ring camera video from a house in Ashley‘s neighborhood. This video captured what appeared to be a small, light-colored SUV driving by at 12:57 a.m. Margaret drove a small, light-colored SUV, and police suspected this may have been Ellis driving to Ashley‘s house. Detectives, however, admitted that this would not have fit well into the timeline of the rape, given the video from the country club.
Two days after the rape, Margaret returned home from a work trip and found that Ellis was not at home, and his car was gone. She became worried about him and filed a missing persons report. Although she did not know it at the time, Margaret testified that detectives eventually told her Ellis had gone to Texas after the rape. From this evidence, the jury could have inferred that Ellis attempted to flee after committing the rape. As this Court has said numerous times over the last century, “flight is always some evidence of a sense of guilt.” Hord v. Commonwealth, 227 Ky. 439, 442, 13 S.W.2d 244, 246 (1928); see also, e.g., Hamblin v. Commonwealth, 500 S.W.2d 73, 74 (Ky. 1973); Chumbler v. Commonwealth, 905 S.W.2d 488, 496 (Ky. 1995); Rodriguez v. Commonwealth, 107 S.W.3d 215, 218 (Ky. 2003).
The missing persons report was assigned to Detective Johnson to investigate. Both Detectives Johnson and Carlock immediately came to suspect that the rape and the missing persons report were related, although Detective Johnson testified that he was first concerned that Ellis was somehow another victim. A few hours after Margaret spoke to Detective Johnson regarding the missing persons report, Ellis arrived at his sister‘s house. He seemed
Detective Johnson testified that, based on his observations of Ellis at the hospital, he began to suspect that Ellis‘s “medical conditions were not as serious as he was portraying them to be.” He testified that he did not understand why Ellis was acting the way that he was but that it “did not add up” to him. Detective Carlock also testified that Ellis appeared to have swelling on his cheek, consistent with being kicked on that side of his face. Detective Johnson asked Margaret to bring Ellis to the Kentucky State Police (KSP) post the following day for an interview. Ellis was released from the hospital that night, and Margaret testified that doctors could not determine whether Ellis had actually suffered a stroke.
The following day, Margaret brought Ellis to the KSP post for a formal interview. Many of the details of this interview/interrogation are described in the Majority‘s opinion. Although Detective Carlock was the lead investigator on the rape case, Detective Johnson took the lead in the interrogation. Detective Johnson had been a detective for longer than Detective Carlock and had more experience with interrogations. Additionally, Detective Johnson had very recently completed training on the Reid technique of interrogations, and Detective Carlock had not yet had this training at the time of Ellis‘s interrogation.
The Reid technique is one of the most widely used police interrogation techniques in the country. When using this technique, police officers attempt
As explained by the Majority, Ellis made some incriminating statements to Margaret while being recorded at the KSP post. However, Ellis presented testimony at trial from an expert in false confessions that these statements were mere “partial admissions” and did not amount to a “confession.” Ellis‘s expert, Professor Alan Hirsch, testified that a true confession has two parts: an admission and a narrative. The admission is the “I did it” portion of the confession. The narrative includes details about who, what, where, when, and how the perpetrator committed the offense. Those details can then be tested against the evidence to determine if the confession is a true one. According to Professor Hirsch‘s testimony, at best, Ellis‘s statements were merely admissions, as they did not include any narrative portion of a confession.
Professor Hirsch further testified about three general categories of false confessions. One of those categories is the internalized false confession, in which the innocent suspect, under interrogative pressure, actually comes to believe that he committed or may have committed the crime. Professor Hirsch explained that internalized false confessions follow a predictable pattern. They begin with a suspect who distrusts his memory for some reason, for example
Professor Hirsch testified that Ellis‘s admissions to Margaret fit squarely within the pattern of an internalized false confession. He explained that Ellis appeared to distrust his memory due to alcohol use. The police presented Ellis with a plethora of untruthful but supposedly conclusive and objective proof that he raped Ashley. Eventually, Ellis made admissions that he thought he did it or that he must have done it, although he was unable to provide a narrative and seemed completely clueless about the details of the incident. Professor Hirsch was clear in his testimony, however, that he could not offer an opinion about the actual truth or falsity of Ellis‘s confession, leaving that decision to the jury.
Relatedly, Professor Hirsch testified that detectives “aggressively” used the Reid technique on Ellis. He conceded that the Reid technique has some safeguards in place to prevent false confessions but opined that these safeguards are not nearly enough. He further testified that one such safeguard was completely ignored by detectives in their interrogation of Ellis. He explained, and Detective Johnson acknowledged, that training on the Reid technique specifically admonishes police not to tell a suspect that if he or she
Ashley testified at trial that it was not until after she was told of Ellis‘s “confession” that she began to suspect he was her assailant. It was then that she came to recognize the finger gesture her assailant made as one that Ellis had made to her. She also described some of Ellis‘s behaviors over the previous years that made her feel uncomfortable. She explained that Ellis would often hug her or rub her back or leg, and that he acted this way towards other women as well, including another one of her sisters who had dementia. She further explained that it escalated to the point that she did not want to be with Ellis alone. Ashley described in greater detail two specific instances in which Ellis acted towards her in a way that she felt was inappropriate.
The first incident Ashley described occurred about a year before the rape. Ashley went to the home Ellis and Margaret shared. Ellis was in the garage, and he and Ashley spoke. At one point, Ellis got behind Ashley and hugged her. Ashley stated that she could feel Ellis pushing his body up against her. She walked away and inside of the house. Ellis also went into the house, and he acted strange and nervous.
The second incident Ashley described occurred at her house. Ellis and Ashley were standing in the hallway, near a bedroom. Ellis put his arm around
Finally, Ashley testified that whenever Margaret would go out of town for work, Ellis would call her and ask to see her. She always denied his request. She testified that the day of the rape was no different. Ellis called her, telling her that he had strawberries he wanted to give to her. As she often did, Ashley made up an excuse to avoid seeing Ellis alone and while Margaret was out of town.
At trial, the Commonwealth introduced other pieces of circumstantial evidence that Ellis had the means and opportunity to commit the crime. Ashley‘s grandson testified that he had installed a new front door at Ashley‘s house the December preceding the rape. He testified that many immediate family members had a key to the front door, and that he made approximately 7 or 8 copies of the key. Ashley testified that Margaret did not have a key to her front door.
Ashley‘s grandson further testified that the new front door key came attached to a small key ring. He could not get the key off of this small key ring, so he placed the small key ring, with the front door key on it, on Ashley‘s larger key ring. He further testified that at some point prior to the rape, the front door key ended up directly on the larger key ring.
Ashley testified that about a month before the rape, she had some car trouble. She brought her car to Ellis, who took it to a local auto parts store. He
Margaret‘s daughter also testified at trial. She testified that during the December preceding the rape, she was at Margaret and Ellis‘s home. She saw handcuffs in Ellis‘s garage and asked Ellis about them. She testified that she did not touch the handcuffs, so she could not say for sure whether they were real or fake, but that they looked shiny, as if they were metal. She further testified that she was again at Margaret and Ellis‘s home on the day that Margaret reported Ellis missing (two days after the rape) and did not see the handcuffs at the house on that day.
Finally, the Commonwealth presented the testimony of Ronnie Allen who was incarcerated with Ellis for a short period of time. He testified that Ellis first
Allen admitted that he is a convicted felon and that he had been convicted of multiple crimes of dishonesty. However, he insisted that he was describing statements Ellis made directly to him and that he did not read Ellis‘s discovery material in order to obtain the information.
The defense sought to discredit or downplay the importance of much of the Commonwealth‘s evidence. Ellis especially emphasized the lack of any direct evidence linking him to the crime. He pointed out that, although the police sent some items to the KSP laboratory, they did not send everything. He further stressed that none of the items sent to the lab had DNA on them that matched his DNA. Ellis elicited testimony from both Ashley and Detective Carlock that Ashley had received sexually explicit text messages on her phone and that Detective Carlock failed to investigate the source of those messages. He also pointed out that Detectives Carlock and Johnson took photos of the crime scene but somehow lost those photos.
Margaret also testified at trial. Although she was called as the Commonwealth‘s witness, her belief in Ellis‘s innocence was clear from her testimony. She testified that Ellis is impotent and that the two had not had sexual intercourse in approximately four years. She testified that Ellis and Ashley had a good relationship, and that Ellis would always help Ashley when Ashley needed something. She testified that it was “not in [Ellis‘s] nature to do something like this.” Margaret also attempted to explain the apparent injury on Ellis‘s face. She testified that about a year before the rape, Ellis had a cancerous spot removed from the skin near his temple. This procedure, she explained, had left a visible scar and made his eye droop.
Ellis did not testify at trial, as was his constitutional right. And although the burden of proof is squarely and solely on the Commonwealth, the jury was not presented with any alternative version of events that would have made logical sense. Instead, they heard evidence from which they could have inferred that Ellis had made a copy of the front door key to Ashley‘s house. They heard evidence that Ellis often touched Ashley in a way that made her feel uncomfortable and said things to her that were inappropriate. They saw evidence that Ellis had an injury to his face consistent with the injury Ashley‘s assailant likely would have sustained from her kick. They heard that Ellis had handcuffs in his garage which disappeared when he fled to Texas after the rape. Finally, they heard evidence from Ellis‘s former cellmate that Ellis had confessed to committing the crime. This confession included details about working on Ashley‘s car, making a copy of the front door key, and removing
Today, we must determine whether “in the context of the entire trial . . . the improper evidence was of a weight, was of a striking enough nature, or played a prominent enough role in the Commonwealth‘s case to raise a reasonable possibility that it contributed to the conviction.” Staples, 454 S.W.3d at 826–27. There is no doubt that Ellis‘s statements to Margaret were damning evidence; however, the impact of these statements was mitigated, at least to some degree, by the testimony of Ellis‘s expert. Further, evidence of Ellis‘s explicit confession to a cellmate was admitted into evidence, and the remaining circumstantial evidence of Ellis‘s guilt was great. I conclude that the evidence of Ellis‘s statements to Margaret was not so weighty, was not so striking, and did not play a large enough role in the Commonwealth‘s case to require reversal of his convictions, as there is no reasonable possibility the erroneous admission of these statements contributed to Ellis‘s conviction. See id. Therefore, the erroneous admission of these statements was harmless beyond a reasonable doubt. Accordingly, I dissent in part from the Majority‘s opinion and would affirm all of Ellis‘s convictions.
Bisig, J., joins.
COUNSEL FOR APPELLANT:
Matthew J. Baker
Baker Law Office
COUNSEL FOR APPELLEE:
Russell M. Coleman
Attorney General
Courtney J. Hightower
Assistant Attorney General