RENDERED: FEBRUARY 24, 2022 TO BE PUBLISHED
Supreme Court of Kentucky 2021-SC-0009-MR
DEVERIOUS JONES APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT V. HONORABLE LUCY ANNE VANMETER, JUDGE NO. 16-CR-01078-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
In this matter of right, Appellant, Deverious Dajewon Jones, appeals a
Fayette Circuit Court judgment against him for a series of robberies, an
assault, and a burglary. See KY. CONST. § 110(2)(b). Jones alleges the trial court
erred by failing to provide him with conflict-free counsel and by admitting
statements in violation of Miranda v. Arizona, 384 U.S. 436 (1966). For the
reasons stated below, we affirm the judgment of the trial court.
I. BACKGROUND
Deverious Dajewon Jones, the Appellant, and his co-defendant, Tahjee
Winters, were indicted for a string of robberies that occurred in Lexington
between September 7, 2016 and September 17, 2016. Five separate incidents
gave rise to Jones’s indictment on thirteen counts of robbery in the first degree,
one count of assault in the first degree, and one count of burglary in the first degree. Because many of the details are not necessary to the resolution of the
legal issues before us today, we only briefly describe each incident.
The first incident occurred on the night of September 7, 2016 at a
residence at 712 Lucile Drive. Nakia Talbert and her boyfriend Byron Smith, as
well as their two children, lived in the home. Two men with guns forced Talbert,
Smith, and the two children into the home’s master bedroom. The men
searched the home and went through Smith’s pockets. A third armed man also
came into the home for a period of time. Apparently not finding what they were
looking for, the men left, stealing Talbert’s car as they departed. Talbert
eventually identified Jones and Winters as two of the men who entered her
home.
The second incident occurred at Hibbett Sports on Winchester Road on
September 8, 2016. Two armed men forced Chase Mullins, an employee at
Hibbett Sports, to open the cash register and give them the money inside the
register. Mullins identified Jones as one of the men.
The third incident occurred at Hibbett Sports on Richmond Road on
September 13, 2016. Three men entered the store and shopped for a short time
before drawing guns and demanding money from the register. Two employees,
James Blackburn and Cameron Montgomery, along with one customer, Medra
Vanzayn, were forced into the stockroom and made to lie face down on the
ground. Vanzayn was also robbed at gunpoint. Two additional customers, Katie
Campbell and Eddie Franklin, entered the store while Blackburn, Montgomery,
Vanzayn, and the three men were in the stockroom. The three men then left the
2 stock room and forced Campbell to give them her purse and forced Franklin to
give them everything in his pockets. The men then left the store. Montgomery
and Campbell both identified Jones as one of the armed men in the store.
Blackburn was initially unsure but, in a follow up interview, stated Jones
looked like one of the men.
The fourth incident occurred at a Shell gas station on September 17,
2016. Two men walked into the gas station and pulled guns on the gas station
employee, Cody Hoban. They took all of the money out of the register. Hoban
was not able to identify either of the men.
The final incident occurred at a Marathon gas station just a short time
after the Shell gas station incident. Three employees, Seth Atkerson, Heather
Dickenson, and Charles Moore, were in the store at that time, but only
Dickenson and Moore were on-duty. Two armed men entered the store, and
one of them pointed a gun at Moore’s head, demanding money. The man
eventually shot Moore multiple times, paralyzing him from the waist down and
causing other significant health issues. None of the employees could identify
the two men, although they were wearing similar clothes and driving a similar
car as the two men from the Shell gas station incident.
Jones was arrested on September 22, 2016. At the time of his arrest, he
was wearing clothing similar to those worn by one of the suspects from the gas
station incidents. He was in possession of a gun which was later determined to
have fired bullets at the Marathon. Winters was not arrested until September
3 26, 2016. He was arrested in Bowling Green after police received information
that he was returning to his home state of Mississippi.
Jones and Winters were indicted by a Fayette County grand jury as co-
defendants. At a jury trial, Jones was found guilty of one count of complicity to
assault in the first degree, one count of burglary in the first degree, six counts
of robbery in the first degree, three counts of complicity to robbery in the first
degree, and four counts of principal or complicitor to robbery in the first
degree. He was sentenced to twenty-four years’ imprisonment. He appeals his
conviction on the grounds that he did not have conflict-free representation and
that his Miranda rights were violated. We consider each argument in turn.
II. ANALYSIS
A. Successive Representation Conflict
Jones first claims error due to an alleged conflict of interest in his
representation. Jones’s attorney realized, in the middle of trial, that one of the
victim witnesses called to testify against Jones was the attorney’s former client.
Jones’s attorney represented the witness, Smith, ten years prior in an
unrelated matter. Smith was the Commonwealth’s witness and a victim from
the home invasion burglary and robbery. Upon discovering the potential for a
conflict of interest, Jones’s attorney approached the bench and sought advice.
He ultimately called the Ethics Hotline, a call center responsible for counselling
attorneys with issues regarding professional responsibility, which counseled
him not to cross-examine the witness. As a result, the Commonwealth offered
to withdraw the witness entirely so as not to prejudice Jones and proceed with
4 other witnesses. Jones’s attorney agreed to the solution, and Smith never
testified.
On appeal, Jones claims that the successive representation prejudiced
him. Specifically, he alleges that if his attorney was able to cross-examine
Smith zealously, Smith may have divulged some exculpatory evidence and
weakened the Commonwealth’s case against him. Jones also argues that even
if Smith had been able to testify, Jones still would have been prejudiced by his
attorney sacrificing zeal in order to keep Smith’s confidentiality. In a final
alternative, Jones argues that even if Smith had testified and Jones’s attorney
had cross-examined him zealously, the attorney would have had to breach
Smith’s confidentiality, violating his professional duty to a former client.
We review successive conflicts of interest under the Strickland standard.
Strickland v. Washington, 466 U.S. 668 (1984); see also, e.g., Steward v.
Commonwealth, 397 S.W.3d 881, 883 (Ky. 2012). If there is error, because it
was unpreserved, we must determine if the error is palpable.1 Palpable error
must be both obvious and serious. Brock v. Commonwealth, 947 S.W.2d 24, 28
(Ky. 1997). The error must be so severe as to “seriously affect the fairness,
integrity or public reputation of the judicial proceedings.” Id. (citation omitted).
1 Jones argues as a threshold matter that conflicts resulting from successive representation are structural errors (defects “affecting the entire framework of the trial,” necessarily rendering a trial “fundamentally unfair”). McCleery v. Commonwealth, 410 S.W.3d 597, 604 (Ky. 2013) (citation omitted). We decline to consider successive representation to be categorically a structural error, especially where the presence of an actual conflict is contested, and therefore will not review it as such. See Commonwealth v. Douglas, 553 S.W.3d 795, 800 (Ky. 2018).
5 Palpable error is therefore a higher standard than mere reversible error, since
palpable error must result in “manifest injustice.” Id.
To determine whether manifest injustice was wrought upon Jones’s trial,
we must first decide whether a conflict existed. If there is no conflict, then
there is no error. Joint or concurrent representation amounts to a conflict and
is impermissible (subject to some exceptions). SCR 3.130(1.7). Successive
representation by contrast is less of a threat to the integrity of an attorney-
client relationship, since an attorney’s duties to former clients differ from those
to current clients. See Steward, 397 S.W.3d at 883 n.3. For this reason,
successive representation does not carry a presumption of prejudice. Mickens
v. Taylor, 122 S.Ct. 1237, 1246 (2002). Under SCR 3.130(1.9)(a),
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
On the terms of this rule, we do not need to reach the Sixth Amendment
question and Strickland analysis. In this case, the matters were not
substantially related, as noted in SCR 3.130(1.9)(a). Jones was being
represented for multiple robberies. Smith, by contrast, was represented in a
drug trafficking case a decade before the events occurred for which Jones was
charged. Furthermore, because the Commonwealth withdrew its witness, there
was no opportunity for information gained from the prior client to affect
representation of the current client. Even if there would have been overlap in
the subject of the matters, any chance of that overlap affecting Jones’s
6 representation dissipated with the Commonwealth’s decision not to call the
witness. Because the matters were not substantially related, and because the
Commonwealth’s solution was effective in nullifying any risk of conflict, there is
no error.
Jones also argues that he did not waive his right to conflict-free counsel
as required by statute. However, since we hold that no conflict exists, such a
waiver was ultimately unnecessary. We therefore also find no error on this
argument.
B. Pre-Miranda Statements
Jones next argues that his Miranda rights were violated by impermissible
questioning prior to being Mirandized. Before trial, the trial court held a
hearing to determine whether the answers taken from the interaction should be
suppressed. The trial court ruled that nothing from the interaction would be
suppressed. As a result, some of the information elicited at arrest, taken before
Jones was Mirandized, was testified to at trial by one of the detectives
responsible for his questioning. We review the factual findings of a trial court’s
ruling on a motion to suppress for clear error, and its conclusions of law de
novo. Moberly v. Commonwealth, 551 S.W.3d 26, 29 (Ky. 2018). Because the
principal issue from the suppression hearing was whether the questions could
be classified as routine booking questions—a conclusion of law—we proceed
with a de novo review of the trial court’s decision not to suppress.2
2 The trial court made no explicit factual findings regarding the officers’ intent behind asking these questions beyond finding that the officers were merely “chatting” with Jones.
7 The questions asked of Jones, taken in a vacuum, seem innocuous. The
trial court described the interaction as “chatt[y].” At the beginning of the
interaction, Detectives Carroll and Carter first talked about the weather.
Routine booking questions—name, age, address, etc.—soon followed. The
officers then asked Jones a series of questions, including:
• How long he’d lived in Lexington,
• What brought him to Lexington,
• How he came to be employed,
• What the nature of his employment was,
• Whether he had ever attended a University of Kentucky (UK)
football game,
• Whether he had worked at the UK football game the past weekend,
• How long he had worked since being in Lexington,
• What shifts he worked,
• Why he had a passcode on his phone,
• Why he had a gun, and
• Whether he’d lived in Mississippi his whole life.
Jones answered each question in turn. At the end of the above questions,
Jones requested his attorney. Upon his request, he was Mirandized.
At trial, Detective Carter testified to the interaction. He testified to
Jones’s answers to several of the questions asked of Jones at booking,
including:
• That he was originally from Yazoo City, Mississippi,
8 • That he had been in Lexington for a year and three months,
• That he came for job opportunities with others from Yazoo City,
• That he had worked various jobs since being in Lexington,
including working in the University of Kentucky football stadium,
• That he had a passcode on his phone to keep his girlfriends from
looking into his messages,
• That he had a gun for protection, and that he had gotten it from an
individual rather than a store,
• That he did not work on the day of two of the crimes, and
• That he had lived in various places in Lexington before arriving at
his current address.
1. The Booking Exception to Miranda
Under Miranda, a person in custody must be informed of their rights
before they are interrogated. 384 U.S. at 498–99. “[T]he term ‘interrogation’
under Miranda refers not only to express questioning, but also to any words or
actions on the part of the police (other than those normally attendant to arrest
and custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291,
301 (1980).
Law enforcement enjoys a limited exception to Miranda in the context of
booking and arrest. Questions that fall under the booking3 exception to
3 Although called the “booking” exception, this exception applies equally to questions asked at the time of arrest but before being formally “booked” into jail. Even 9 Miranda are those “reasonably related to the police’s administrative concerns.”
Pennsylvania v. Muniz, 496 U.S. 582, 601–02 (1990). The aforementioned
includes information whose usefulness is related to record-keeping,
incarceration, and pre-trial services. Dixon v. Commonwealth, 149 S.W.3d 426,
432 (Ky. 2004). The United States Supreme Court “has been reluctant to
circumscribe the authority of the police to conduct reasonable booking
searches,” giving officers some latitude when arresting and booking individuals
accused of a crime. Maryland v. King, 569 U.S. 435, 456 (2013).
Not all questions incident to booking are protected from Miranda. See
Dunlap v. Commonwealth, 435 S.W.3d 537, 598–99 (Ky. 2013) abrogated on
other grounds by Abbott, Inc. v. Guirguis, 626 S.W.3d 475 (Ky. 2021). If the
question is not “normally attendant to arrest and custody,” or is not
“reasonably related to the police’s administrative concerns,” then “it is not the
sort of ‘booking question’ for which a Miranda exception has been created.” Id.
(citations omitted). However, when asking questions incident to booking such
as a person’s “name, address, height, weight, eye color, date of birth and
current address,” or employment status, police need not Mirandize a person in
custody. Id. at 599 (citing United States v. Pacheco-Lopez, 531 F.3d 420, 423
(6th Cir. 2008)); Dixon, 149 S.W.3d at 432.
In Dixon, this Court held that the trial court did not err by admitting the
defendant’s responses to a question about employment status asked at
this finding is a mixed finding of fact and law, given the unique status of booking questions with reference to Miranda rights.
10 booking. 149 S.W.3d at 431. There, the trial court found that the employment
question was not intended to incriminate but was instead part of routine intake
questions on a form used by the officers. Id. at 433. On appeal, this Court held
that given the lack of intent to incriminate, the questions did not run afoul of
the United States Supreme Court’s holding in Muniz, even though Dixon had
asserted his right to counsel before the booking began. Id. at 431–32.
There are, therefore, two kinds of questions that may result from a
booking interaction: questions “normally attendant to arrest and custody”
(including questions “reasonably related to the police’s administrative
concerns”), and interrogations. Although some questions will fall neatly into
either category, others may require a case-by-case analysis to determine
whether or not they are appropriate under Miranda and Muniz. In the matter
herein, some questions may have had the effect of incriminating Jones, while
others were relatively innocuous. We must therefore determine which
questions, if any, violated Jones’s Miranda rights.
2. Jones’s Routine Booking Questions
As stated above, standard booking questions (such as height, age, name,
and date of birth) are always permissible under Muniz, even if they may be
incriminating in effect. For example, height is a permissible booking question
even if witnesses to a crime cite the criminal as being a specific or unusual
height. Likewise, asking for a phone number is a standard and appropriate
booking question, even if law enforcement has access to incriminating
messages that include that phone number as a sender. Routine booking
11 questions asked of Jones include, for example, his name, weight, date of birth,
phone number, former residences, employment status, and current address.
For this reason, although Jones argues that questions about his home
state of Mississippi were improper, we hold that they were not. Booking
questions involving past residences are clearly attendant to administrative
needs, and can be utilized for a variety of purposes, including to conduct
warrant searches, to establish community ties, and to determine potential
necessities prior to trial (if a defendant is indigent, unhoused, or has no local
connections on whom to rely). The detectives’ questions about Jones’s origin
and current address are therefore booking questions, even though they may
have had the tendency to show a connection with his co-defendant.
As noted, determining whether a question is reasonably related to the
police’s administrative concerns, versus whether it is an interrogation seeking
incriminating evidence, sometimes requires a case-by-case determination.
Whether an officer should know that a line of questioning is incriminating and
not reasonably related to booking will change depending upon the alleged crime
and the extent of an officer’s knowledge regarding said crime. For example, if
an officer booking an inmate is unaware that an element of the crime occurred
last Saturday, then it might not be a violation of Miranda for the officer to
attempt to develop rapport at booking by asking if he saw the big game that
day, even though the information in the response may be used by the
Commonwealth later. On the other hand, if a booking officer knows that part of
the crime occurred on Saturday during the big game, that same question
12 becomes an improper interrogation. With this in mind, we look to the
remaining questions asked of Jones during his booking.
Other appropriate booking questions asked of Jones were not necessary
to his arrest, but were nonetheless not intended to incriminate him and were
reasonably related to the administration of booking. For example, in this case,
weather was not related to the crime nor Jones’s arrest. Questions Jones was
asked about weather were therefore proper. Questions about how long he had
been employed, what brought him to Kentucky, and comparisons between
Mississippi and Kentucky were similarly appropriate. Each of these questions,
although perhaps nonessential to the process of booking, were reasonably
related to other questions and administrative concerns in this case such that
they fell under the exception to Miranda.
3. Jones’s Non-Booking Questions
The officers did cross a line, however, when they asked Jones if he had
worked on the day of two of the crimes, why he had a phone password, and
why he had a gun. We address each impermissible question in turn.
The detectives arresting Jones were leading the investigation on the
series of robberies for which he was accused. They likely knew the dates and
times of those crimes, given that it was established at the suppression hearing
that the officers arresting Jones were leading the investigations into the crimes.
They therefore knew that if Jones had been working on the date they had
asked about, he would have been unable to commit the crimes. Conversely, if
he had not been working, it would be less likely that he had an alibi. The
13 detectives used Jones’s answer—that he did not work that Saturday—in
testimony at trial. Clearly, the detectives knew or should have known that his
response could be incriminating. As such, Jones’s answer did not fall under
the booking exception to Miranda.
Similarly, asking Jones why he had a firearm did not reasonably relate to
administrative concerns, and could easily have incriminated Jones further.
Therefore, Jones’s answer also did not fall under the booking exception to
Miranda.
As for the question regarding his passcode, however, we have insufficient
factual findings to establish that officers intended for this question to
incriminate. Asking Jones for his phone number and requesting he turn over
his phone and any weapons are certainly necessary elements of booking a
defendant. However, asking why Jones had a passcode on his phone was
similarly not reasonably related to administrative concerns. This question, too,
may have been intended to incriminate. However, we have insufficient factual
findings regarding the issue to determine if the trial court’s failure to suppress
was in error. Even if we assume, however, that this testimony should have also
been suppressed by the trial court, for the reasons stated below, any error was
harmless beyond a reasonable doubt.
In summary, the trial court erred in finding that all of Jones’s statements
fell under an exception to Miranda. Specifically, the trial court should have
suppressed Jones’s responses to questions regarding whether he worked the
weekend of two of the crimes and why he owned a gun. Finding error, we must
14 determine if the error is harmless beyond a reasonable doubt. See Winstead v.
Commonwealth, 283 S.W.3d 678, 689 n.1 (Ky. 2009) (citing Chapman v.
California, 386 U.S. 18, 24 (1967)); RCr 9.24. “Thus, we ask whether ‘absent
[the impermissible testimony], is it clear beyond a reasonable doubt that the
jury would have returned a verdict of guilty?’” Baumia v. Commonwealth, 402
S.W.3d 530, 539 (Ky. 2013) (quoting United States v. Hasting, 461 U.S. 499,
510–11 (1983)).
At trial, multiple people, including several victims, testified regarding the
robberies. Multiple people testified that Jones was the perpetrator, and
identified him outright. A gun in his possession matched bullets at a crime
scene. The gun also matched victims’ descriptions. Jones himself matched the
descriptions of the perpetrator, and was wearing similar clothes to those worn
during some of the crimes when he was apprehended. Finally, the
Commonwealth introduced inculpatory text messages sent by Jones and web
searches conducted by Jones into evidence at trial. Overall, the evidence
against him was such that even absent the statements at booking, it is “clear
beyond a reasonable doubt” that Jones would have still been found guilty. This
error was therefore harmless beyond a reasonable doubt.
15 III. CONCLUSION
Because no conflict impaired his representation, and because any error
in the trial court’s failure to suppress was harmless beyond a reasonable
doubt, we affirm the trial court’s judgment.
Minton, C.J.; Conley, Hughes, Keller, Lambert & Nickell, JJ., sitting. All
concur. VanMeter, J., not sitting.
COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt Erin Hoffman Yang Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Emily Bedelle Lucas Assistant Attorney General
Kenneth Wayne Riggs Assistant Attorney General
Christina Lauren Romano Assistant Attorney General