Opinion of the Court by
A Fаyette Circuit Court jury found Appellant, Timothy Meskimen, guilty of first-degree manslaughter, first-degree tampering -with physical evidence, third-degree alcohol intoxication, and third-degree criminal trespass. For these crimes, Appellant received a twenty-five-year prison sentence. He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that the trial court erred by: (1) allowing the use of Appellant’s coerced statements in violation of his constitutional rights, (2) failing to suppress the evidence of subsequent statements made during his hospitаlization, (3) denying his motion to suppress evidence of hair comparisons, and (4) summarily imposing a consecutive six-month sentence for indirect contempt. For the reasons that follow, we affirm Appellant’s conviction and sentence.
I. BACKGROUND
Edgar Hurst was a homeless man who lived on the streets of Lexington prior to his murder in 2010. Appellant was also homeless and living in Lexington at the time of Hurst’s murder. About a year and a half prior to Hurst’s death, Appellant met Donna Franklin. Despite their dysfunctional relationship, they began living together on the streеts. They traveled around quite a bit, but eventually set up camp in the median at the intersection of 1-75 and North Broadway. Appellant worked what odd jobs he could, but he and Franklin drank up all his earnings.
On the day of Hurst’s death, Appellant and Franklin cleaned a Lexington office building and bought some whiskey. The first bottle went quickly, and then they sat around the campsite sharing the second bottle. When it began to run low, Appellant decided he needed to get more. Around midnight, he walked to a liquor store and bought some more whiskey. On his way back, he saw Hurst sitting in the mediаn of the Interstate. It was raining, so Appellant invited Hurst back to their campsite where he and Franklin kept a fire.
When the two men returned to the campsite, they sat around drinking whiskey with Franklin. After Franklin went to bed, however, Hurst, allegedly, asked Appellant: “How about when I, if I kill you when I done kill, when you pass out and. have my way with your woman.” The two men then got into a fight. When it was over, Appellant testified that he believed he had knocked Hurst out.
The following morning Appellant discovered Hurst was dead. He then dug a hole and covered the body with dirt, brush, rocks, and a door. Shortly thereafter, he and Franklin moved to a nearby motel where they spent the next three or four days drunk. Eventually they got into an argument, and Franklin called the police. Appellant was then forced to leave the motel.
Appellant was then taken to police headquarters for an interview. The interview lasted for approximately an hour. Several times during the interview, he asked to go to the hospital as he said he was in excruciating pain as a result of a visible head injury. Appellant, however, denied killing Hurst during this interview.
Later, when he was taken to the hospital, it was determined that Appellant had a skull fracture and brain injury that had likely occurred at least five days prior to his hospital admission. During the course of his hospital stay, hоwever, he provided the police with two statements in which he admitted killing Hurst.
He was then indicted by a Fayette County Grand Jury and charged with murder, tampering with physical evidence, alcohol intoxication third or greater offense, and criminal trespass in the third degree.
Prior to trial, Appellant moved to exclude evidence of all three statements made to the police following his arrest.
A Fayette Circuit Court jury eventually found Appellant guilty of first-degree manslaughter, tampering with physical evidence, alcohol intoxication, and third-degree criminal trespass. The jury then recommended Appellant receive the maximum sentence for each of the felonies, twenty years for manslaughter in the first degree and five years for tampering with physical evidence. The jury also recommended that the two sentences be served concurrently for a tоtal of twenty years’ imprisonment.
After Appellant left the courtroom following sentencing, the trial judge began another hearing. During that hearing the bailiff approached the bench, and the trial judge directed that Appellant be kept in a holdover cell after the bailiff informed the trial judge that Appellant had “flipped off’ the news media on his way out of the courtroom. Later, the trial judge summarily held Appellant in contempt and sentenced him to an additional six months to be served consecutively to his twenty-five-year sentence. Additional facts will be developed as necessary.
II. ANALYSIS
A. Coerced Statements
Appellant first argues that the use of his statements to the police violated his right to counsel and his right to remain silent as guaranteed by the Fifth and Sixth Amendments. Specifically, Appellant alleges the statement obtained during the initial inter
We review a trial court’s order on a suppression motion using a two-step analysis. Anderson v. Commonwealth,
As the second step in our appellate review, we must conduct a de novo review of the ruling on the motion to suppress to determine whether it was correct as a matter of law. Id. We hold that it is for the reasons that follow.
1. Right to Remain Silent
Upon arrest, Appellant was taken to the police station for questioning. At around 5:51 a.m. Detective Brislin began his interrogation of Appellant. Prior to the initiation of questioning, Appellant was given his Miranda
In Miranda the Court held: [0]nce warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after thе privilege has been invoked.
In a ease somewhat similar to this one, we recently held that a suspect’s repeated requests to be taken to jail were not sufficient to clearly invoke his right to remain silent. Quisenberry,
[Wjilliams contends these last remarks were, in effect, an invocation of his right to remain silent, that they amounted to a demand that the questioning cease and that he be taken to jail. Even if that might be what Williams meant to say, however, those remarks were far from unambiguous. They could just as well have been a concession of his predicament, a “You’ve got me; you might as well take me to jail.” At the suppression hearing, Detective Arnold testified that he understood Williams’s remarks in this latter sense, not as a request to cease thе exchange and be taken to jail, but as marking Williams’s realization that his blanket denials were not working and his situation was serious. As a reasonable officer could certainly have interpreted Williams’s “take me to jail” remarks in that way and not as an assertion of rights, Miranda and Edwards [v. Arizona,451 U.S. 477 ,101 S.Ct. 1880 ,68 L.Ed.2d 378 (1981) ] did not preclude further questioning.
Id. In the same vein, we hold that Appellant did not-by asking to be taken to the hospital — “clearly and unequivocally” invoke his Fifth Amendment right to remain silent in a manner in which a reasonable police officer in the situation would understand as a request for questioning to cease. Thus, we find no error in the trial court’s denial of the motion to suppress.
2. Involuntariness
Furthermore, Appellant argues that his statements were involuntary given he was intoxicated at the time of the interrogation
Having reviewed the record, we cannot say Appellant was so intoxicated as to reach the point of mania or give an unreliable statement. Following the suppression hearing, the trial court found Appellant was clearly not so intoxicated as tо make his statements involuntary or untrustworthy. Moreover, from the recordings of the interview, it appears that Appellant was able to give a valid waiver of rights, understand Detective Brislin’s questions, and answer appropriately. Detective Brislin testified at the suppression hearing that, based on his experience as a police officer, Appellant was not intoxicated to the point of being unable to make
Appellant also argues that his statements were involuntarily made given that he was subjected to sleep deprivation as a coercion tactic. In support, Appellant cites to Ashcraft v. Tennesee,
Appellant also argues that the withholding of immediately necessary medical care until a statement is given by a suspect is “unquestionably the type of interrogation technique that should be condemned by any civilized society.” However, Detective Brislin testified that he did not believe that Appellant was suffering from an injury that was so serious that it required immediate medical attention; he felt Appellant was just trying to dodge the questions and the interview lasted roughly an hour after which Appellant was taken immediately to the hospital upon its conclusion. For these reasons, the trial court found the statements to be voluntary, and not the product of coercion.
For the reasons previously discussed, we find that Appellant’s statements made at the police station were voluntarily made and thus the trial court’s ruling is correct as a matter of law.
B. Second and Third Statements
Appellant, next argues that the trial court errеd in admitting incriminating statements he made while in the hospital. Specifically, Appellant alleges that these statements (in which he admitted that he killed Hurst) should have been suppressed, as forty-eight hours had passed without a probable cause determination. Appellant concedes, however, that this issue is unpre-served, but asks it be reviewed for palpable error. RCr 10.26; KRE 103.
“A finding of palpable error must involve prejudice more egregious than that occurring in reversible error, and the error must have resulted in ‘manifest injustice.’ ” Ernst v. Commonwealth,
After the initial interview with Detective Brislin at the police station, Appellant was taken to the hospital where he was admitted and treated for head injuries. While in the hospital, the police conducted two additional interviews, and during the сourse of each of these interviews Appellant admitted to killing Hurst. Both confessions were qualified by the fact that Appellant claimed he was acting in self-defense. Appellant argues that both confessions should have been suppressed given that they occurred more than forty-eight hours after his arrest in violation of County of Riverside v. McLaughlin,
McLaughlin sets forth the following:
[W]here an arrested individual does not receive a probable cause determinationwithin 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends.
Id. (emphasis added). Appellant argues that the police cannot indefinitely hold a defendant charged with a crime, even in a hospital, and continue to question him without giving him the opportunity for an arraignment and the appointment of counsel. While we do not find this statement to be untrue, it is simply not the situation in the present case.
Appellant was in the hospital for the treatment of a brain contusion and a fractured skull, both of which are serious injuries.
For the reasons stated, we cannot find that the admission of the statements Appellant made to the police while he was in the hospital seriously affected the fairness, integrity, or public reрutation of the proceeding and therefore, we find no palpable error in their admission.
B. Daubert Hearing
Appellant next argues that the trial court erred to his substantial prejudice when it denied his motion to exclude physical evidence. Specifically, Appellant alleges the admission of hair comparisons was erroneous because the trial court failed to conduct a Daubert hearing.
Two hair samples were of significance in this case: (1) one found on a piece of wood that the Commonwealth inferred was used to hit Hurst in the back of the head and (2) one found on the underside toe area of Appellant’s boot, which was used to create an inference that he had kicked Hurst in the head or stomped on his face. Appellant argued, before the trial, that hair comparison evidence was scientifically unreliable and, therеfore, the evidence should not be admitted. The trial court denied Ap
Daubert recognized that some scientific methods, techniques, and theories are so firmly established as to be proper subjects of judicial notice. Johnson v. Commonwealth,
in this Commonwealth for many years.” Id.
In this case, the Commonwealth offered evidence that has been admissible in the state of Kentucky for many years. Microscopic hair analysis is a scientifically reliable method, and we, therefore, do not require that a Daubert hearing be held with regard to the admittance of such evidence. We will not disturb the decisions of the trial cоurt without a clear showing of abuse of discretion. Partin v. Commonwealth,
With that being said, the state of scientifically accepted evidence is ever changing, and what is scientifically acceptable today may be found to be incorrect or obsolete in the future. In the present case, the trial court correctly took judicial notice of the acceptability of scientific methods, but this is not a rule that is “set in stоne,” and is subject to change with scientific discovery.
C. Consecutive Sentence
Lastly, Appellant argues that the trial court erred to his substantial prejudice by imposing a consecutive six-month sentence for contempt. This issue is admittedly unpreserved, but sentencing issues may be raised for the first time on appeal and Appellant is proceeding properly before this Court. Cummings v. Commonwealth,
Appellant’s case was followed by the Lexington news media, and several members of the media were present on the final day of his trial. At sentencing, the trial judge informed Appellant that under Kentucky law it was in his discretion whether to follow the jury’s recommendation of concurrent sentences, and the fact that Appellant had buried Hurst in a shallow grave and covered him with a door “offended me greatly.” Thus, the judge sentenced Appellant to consecutive sentеnces, overriding the jury’s recommendation.
After the judge announced Appellant’s sentence, Appellant’s counsel asked him to call another hearing that he had scheduled that day. Shortly after that hearing began, a bailiff approached the bench and whispered something to the judge. At the conclusion of the hearing, the judge requested that Appellant be brought back in the courtroom. Appellant was resistant as the bailiff tried to bring him into the courtroom, and he kept arguing that “I’ve got nothing to say to him, I’ve got my time.” As Appellant walked to the podium, he held out his hands and said “What the f* *k you got to say now?”
The judge then explained:
It’s the court’s understanding that as Mr. Meskimen was leaving the courtroom, in the colloquial sense he flipped off the news media, and so on, he may have been mad at me, I don’t know. I tried to treat him with respect all through this thing. The sentence of the court was in accordance with his conduct.
In response, Appellant quipped, “Not what the jury wanted to do, was it, judge?” The judge responded:
The court understands because he flipped off the media, the court аlso has heard, in graphic terms, Mr. Meskimen’s refusal to come out of the holdover when requested by the court, he has cursed the court in graphic terms. The court has no choice but to hold Mr. Meskimen in contempt of court. I’m going to sentence you to an additional six months consecutive to the 25 years I’ve already given you sir.
An act of contempt is “willful disobedience toward, or open disrespect for, rules or orders of court.” Commonwealth v. Burge,
We have noted that criminal contempt includеs those acts done in disrespect of the court or its processes or which obstruct the administration of justice or tend to bring the court into disrepute. “It covers not only acts which directly and openly insult or resist the powers of the court or the persons of the judges, but to consequential, indirect, and constructive contempts which obstruct the process, degrade the authority, and contaminate the purity of the court.” Mitchell v. Commonwealth,
III. CONCLUSION
For the aforementioned reasons, we affirm Appellant’s convictions and corresponding sentence.
Notes
. Even though Appellant denied having any part in Hurst’s death during the interview at the police station, defense counsel sought exclusion of the statements so they could not be used for impeachment purposes at trial, given that he ultimately confessed to the crime during his hospital stay.
. The parties agreed to allow the trial judge to set the punishment fоr the misdemeanor offenses.
. This issue was properly preserved by defense counsel’s motion to suppress.
. Miranda v. Arizona,
. Appellant admits to consuming approximately twelve beers in the hours leading up to the interrogation.
. Appellant spent a total of four days in the hospital, two of which were spent in the ICU.
. Daubert v. Merrell Dow Pharmaceuticals, Inc.,
.This issue is properly preserved by defense counsel’s motion to exclude evidence of hair comparison, and defense counsel’s request for a Daubert hearing on the motion.
. In the present case, Appellant’s brief draws the Court’s attentiоn to a 2009 article published by the National Research Council of the National Academies, which disputes the scientific accuracy of hair analysis. It is true that hair analysis has been called into question by several recent findings, including those of the Federal Bureau of Investigation (FBI). However, those findings question positive identifications based solely upon hair analysis, and analysis performed only on the shaft of the hair (those not containing a root). Here, at least one of the samples contained a root and the еxaminer simply testified that the hairs had characteristics similar to those of Hurst. Furthermore, Appellant was fully allowed to cross-examine the witness about the limitations of hair comparison analysis.
. A perfect example of why such review could occasionally be necessary is exemplified by Ragland v. Commonwealth, 191 S.W.3d