RENDERED: FEBRUARY 19, 2015 rrI3E7PUIZIS ED
uprrnw Court of 71 tiffurtvil §-\\ 2013-SC-000833-MR 1AT D. . GARY STEVEN BOND APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE MITCH PERRY, JUDGE NO. 10-CR-001550
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
A jury found Gary Steven Bond (Bond) guilty of murder and sodomy in
the first degree. The court, consistent with the jury's recommendation,
sentenced Bond to life without the possibility of parole for 25 years on the
murder conviction.' The court, consistent with an agreement between Bond
and the Commonwealth, sentenced Bond to 20 years' imprisonment on the
sodomy charge, to run concurrently with the sentence for murder. Bond
appeals his convictions arguing: (1) the court should have suppressed a
statement he gave to police; (2) absent suppression, the court should have
permitted Bond to play his entire statement for the jury; and (3) the court
should have granted a directed verdict on the sodomy charge because there
I The jury found that sodomy in the first degree was an aggravator under KRS 532.025, justifying the sentence of life without the possibility of parole for 25 years. was no corroborating proof to support his confession to that crime. For the
following reasons, we affirm.
I. BACKGROUND.
In May of 2010, Mark Shelby (Shelby) was temporarily living with Bond
and sleeping on Bond's couch. At approximately 5:30 p.m. on May 11, Shelby
arrived at Bond's apartment and found Bond and his girlfriend, Julie
Hendricks (Hendricks), getting dressed in the bedroom. The three ate dinner
and drank some beer and Jagermeister. 2 At approximately 8:00 p.m.
Hendricks passed out on the living room floor. Because Hendricks weighed in
excess of 250 pounds, Bond and Shelby could not lift her. Therefore, they
dragged her into the bedroom and left her on the floor. Bond covered
Hendricks, who was clothed, with a blanket and he and Shelby returned to the
living room. At approximately 10:00 p.m., Bond went into the bedroom, and
Shelby went to sleep on the couch.
At approximately 1:45 a.m. Bond woke Shelby and said that he thought
Hendricks had died. Shelby went into the bedroom and saw that Hendricks,
Who was nude, was turning blue and appeared to be dead. Shelby encouraged
Bond to call 911, which Bond did approximately a half hour later. Emergency
personnel confirmed that Hendricks had died and, because the death appeared
suspicious, the deputy coroner called the police. Detective Brenda Wescott
(Detective Wescott) arrived at Bond's apartment at approximately 4:30 a.m. and
interviewed Bond and Shelby. However, because she did not initially believe
2 A fruit flavored German liqueur.
2 Hendricks's death was a homicide, Wescott did not take any physical evidence
from Bond's apartment.
The autopsy report indicated that Hendricks had died as the result of
strangulation and that she had had anal sex sometime prior to her death.
Based on these findings, police officers returned to Bond's apartment and
asked him if he would go to the station to be interviewed. Bond agreed. After
reading Bond his rights and obtaining a waiver, Detective John Lesher
(Detective Lesher) questioned Bond at length. During that interview, Bond
admitted that he had had anal sex with Hendricks while she was unconscious
on the bedroom floor and that he had pulled on Hendricks's tee shirt while
doing so. However, he stated that he did not think Hendricks died at that time.
Later, Bond denied that he had anal sex with Hendricks while she was
unconscious, stating that the couple had consensual anal sex earlier in the day
and were interrupted by Shelby. Bond also claimed that Lesher concocted the
story about him having anal sex with Hendricks while she was unconscious.
The officers arrested Bond and charged him with murder and first-degree
sodomy. Prior to trial, Bond moved to suppress his statement, a motion the
court denied. At trial, the Commonwealth played portions of Bond's statement
and Bond moved for leave to play the entire statement, a motion the court
denied. We set forth additional facts about Bond's statement, which is at the
center of this appeal, as necessary below.
3 II. STANDARD OF REVIEW.
The issues raised by Bond have differing standards of review. Therefore,
we set forth the appropriate standard as we address each of the issues Bond
raises.
III. ANALYSIS.
A. Motion to Suppress.
The standard of review on a suppression motion is twofold. First, we
defer to the trial court's factual findings if they are supported by substantial
evidence and only review such findings for clear error. RCr 9.78;
Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002). Second, when the
findings of fact are supported by substantial evidence, we review the court's
application of the law to those facts de novo. Roberson v. Commonwealth, 185
S.W.3d 634, 637 (Ky. 2006). When undertaking that review we take care "to
give due weight to inferences drawn from those facts by resident judges and
local law enforcement officers." Ornelas v. United States, 517 U.S. 690 at 699
(1996).
On July 17, 2013, Bond filed a motion to suppress the May 13, 2010,
statement he gave to Detectives Lesher, Cohn, and Wescott. 3 Bond did not
challenge the fact that he had been advised he had the right to remain silent
and to counsel and that he waived those rights before agreeing to speak with
3 Bond raised an issue in his motion before the trial court regarding the statement he gave to Detective Wescott on May 12, 2010. However, his counsel admitted after the evidentiary hearing on that motion that he was not pursuing any issues regarding that statement. Furthermore, he does not raise any issues regarding that statement in this appeal. Therefore, we do not address it.
4 the detectives. However, he argued that the detectives intentionally minimized
the significance of the warning about the implications of waiving his rights so
as to negate the knowingness of his waiver. He also argued that police conduct
during the interviews was unduly oppressive and coercive, thus negating the
voluntariness of his waiver. The Commonwealth argued that Bond was not in
custody and that he had knowingly and voluntarily waived his rights.
Following an evidentiary hearing, the trial court denied Bond's motion
finding that the interrogation was custodial; that Bond had been advised of his
rights; and that he had waived them. In doing so, the court noted that Bond
never asked the detectives to stop the interrogation, and he never asked to
speak with an attorney. The court also found that the tactics used by the
detective were "fairly standard." 4 Bond did not file any motions seeking
additional findings of fact from the court.
Bond continues to argue on appeal that the detectives' actions vitiated
the knowingness and voluntariness of his waiver and were unduly coercive. He
also argues that the trial court did not make sufficient findings of fact. The
Commonwealth argues to the contrary. We address each issue separately
below.
1. Knowingness of Waiver.
Bond argues that the detectives negated the waiver of his rights by
misleading him as to the significance of the waiver and the nature of the
4 The trial court issued an oral order on the record following the hearing and later entered into the record a similarly worded written order.
5 interview. In support of his argument, he points to several statements made by
the detectives during the interview. At the beginning of the interview, Detective
Lesher told Bond that he had a digital audio recorder for his use because he
"forget[s] a lot." Detective Lesher then asked Bond if it was okay to record the
interview, and Bond said it was. However, Detective Lesher did not tell Bond
that the interview was being recorded by a video camera as well as the audio
recorder.
After obtaining Bond's consent to record the interview, Detective Lesher
asked Bond if he ever watched any true crime stories on television. Bond
stated that he did, and Detective Lesher then said, "Okay. Uh, I'm gonna read
you your rights, we do this all the time. It's no big deal. Okay?" Detective
Lesher then read Bond his rights; Bond agreed that he understood his rights;
and he signed a written waiver form. Later in the interview, Detective Lesher
described his wife as "a freak" when it comes to sex, and began describing his
sex life. Bond, referring to the digital recorder, said, "Turn that off." Lesher
said, "Oh, I don't care about that. It's just for me." Bond then said, "Oh,
Okay." And Detective Lesher reiterated, "[T]hat's just for me to remember."
Bond argues that this behavior by Detective Lesher is the same type of
behavior this Court condemned in Leger v. Commonwealth, 400 S.W.3d 745
(Ky. 2013.) In Leger, after being read his rights, Leger agreed to speak with a
police officer about several crimes he allegedly committed. Id. at 747. When
questioned about specific incidents, Leger asked the officer, "What I am telling
you now is between us, right. It ain't goin' [unintelligible]?" To which the
6 officer replied, "Right." Id. Leger then confessed to several of the alleged
offenses. Id. Leger sought to suppress his statement arguing that the officer's
assurance the statement would be "between us" had vitiated the previously
given Miranda warnings. Leger also argued that the officer's interrogation style
was "so deceptive that it unfairly induced [Leger] to forget that the [officer] was
an 'adversary,' and 'revealed an atmosphere' that prompted [Leger] to speak
against his better interest." Id. at 748.
As to the officer's interrogation style, we discerned "absolutely nothing
improper about" his "courteous and friendly demeanor or the impression of
cordiality created by his manner of speaking with [Leger]." Id. Furthermore,
we recognized that "[a]rtful deception is an invaluable and legitimate tool in the
police officer's bag of clever investigative devices, but deception about the rights
protected by Miranda and the legal effects of giving up those rights is not one of
those tools." Id. at 750.
As in Leger, we discern nothing improper about Detective Lesher's
interrogation style. Although Detective Lesher's statements about his wife may
have been deceptive and may have lulled Bond into a sense of security, they
were not beyond the bounds of acceptable "clever investigative devices."
Furthermore, Detective Lesher's comments that the digital recorder was
"just for me" because he "forgets a lot" do not rise to the level of the statements
by the officer in Leger and the cases we cited therein. In those cases, the
officers specifically stated that the conversation was going to be kept
confidential or between the officer and the defendant. That is not what
7 occurred here. Here, Detective Lesher simply stated that the recorder was for
his use. He did not state that what Bond said would be kept confidential or
that what Bond said would be kept between them. It is the statements a
defendant makes that "can and will be used against" him, not necessarily the
recording of those statements. If there had been no recorder present or if the
recorder had been turned off, the Commonwealth would still have been able to
use any statements made against him by Bond.
We are, however, somewhat concerned about Detective Lesher's
statement - "We do this all the time. It's no big deal" - prior to reading Bond
his rights. Taken out of context, this statement by Detective Lesher could be
construed as minimizing the significance of the rights Bond was being asked to
waive. However, in the context in which it was made, i.e. Bond's familiarity
with the process from watching true crime television shows, we cannot say that
it vitiated Bond's knowing waiver of his rights.
2. Voluntariness of Waiver.
During the course of the interview, Detectives Lesher and Cohn told
Bond several times that the detectives just wanted to get additional
information, that Bond was not "in trouble," and that they did not think there
had been an intentional or criminal act. Bond argues this questioning
"subverted the Miranda warnings that anything [Bond] said could and would be
used against him in court" by indicating that "what he said or 'explained' was
not going to get him in trouble and ultimately was not a crime." Detective
Lesher testified at the suppression hearing that, when he made those
8 comments, they were true. The detectives had received information from the
medical examiner indicating that Hendricks had been strangled to death. At
that time they did not know who had strangled her or how she had been
strangled. Therefore, the detectives' statements to Bond were not obviously
false when made. Furthermore, while the detectives may have downplayed
Bond's culpability, they did not, after reading Bond his Miranda warning, state
that they would not use any statements against him. Statements such as
those made by the detectives, while coming close to crossing the line between
"clever investigative devices" and prohibited behavior, did not cross that line.
Additionally, Bond argues that the detectives' conduct violated Kentucky
Revised Statute (KRS) 422.110, the "anti-sweating" statute by "plying" him with
questions. KRS 422.110 provides that:
No peace officer, or other person having lawful custody of any person charged with crime, shall attempt to obtain information from the accused concerning his connection with or knowledge of crime by plying him with questions, or extort information to be used against him on his trial by threats or other wrongful means, nor shall the person having custody of the accused permit any other person to do so.
Detectives Lesher and Wescott testified at the suppression hearing that
they and Detective Cohn asked Bond the same or similar questions several times throughout the course of the interview. By way of explanation, Detective
Lesher stated that, to the extent Bond was repeatedly questioned about the
events of May 12, it was because Bond kept changing his story. The trial court
found this conduct was within the bounds of acceptable and "fairly standard"
police practice. We agree.
9 As our predecessor Court held: "Plying with questions means the
persistent and repeated propounding of inquiries to elicit a desired answer,
carried to such an extent that the prisoner feels required to answer as the
questioner wishes in order, to escape from the pressure." Bennett v.
Commonwealth, 242 Ky. 244, 46 S.W.2d 84, 85 (1932). Detectives Lesher and
Wescott admitted that they asked Bond the same or similar questions several
times. However, a reading of the transcript of the interview does not support
Bond's argument that repeated questioning by the detectives was designed to
elicit a desired answer. Rather, it was designed to clarify Bond's changing
version of events. Furthermore, there is no indication that the detectives
exerted any undue pressure from which Bond would have wanted to escape.
3. Sufficiency of Trial Court's Findings of Fact.
Finally, Bond argues that the trial court's findings of fact were not
sufficient to meet the requirements of Kentucky Rule of Criminal Procedure
1RCr) 9.78. However, Bond did not ask the trial court to make additional
findings of fact. Therefore, we need not and do not address that issue. See
Vinson v. Sorrell, 136 S.W.3d 465, 471 (Ky. 2004).
C. Admission of Entire Statement.
The Commonwealth indicated that it intended to play portions of Bond's
interview for the jury. Bond argued that, if the court permitted the
Commonwealth to play part of the interview, it had to play the entire interview.
In the alternative, Bond moved the court for an order permitting him to play
those parts of the interview wherein he expressed his love for Hendricks. He
10 also sought permission to play those portions of the interview that he believed
showed that the detectives planted the seed that he sodomized Hendricks while
she was unconscious. The Commonwealth argued that the portions Bond
wanted to play amounted to inadmissible hearsay. The court ruled that the
Commonwealth could play selected portions of the interview and that Bond
could not play the redacted portions of the interview. In doing so, the court
noted that what Bond wanted to play for the jury was "classic hearsay," and he
could attempt to put the excluded portions of the statement before the jury by
testifying or through cross-examination of the detectives.
On appeal, Bond argues that he should have been permitted to play the
redacted portions of the statement based on "the rule of completeness."
Kentucky Rule of Evidence (KRE) 106. He also argues that the court limited
his cross-examination of Detective Lesher so that he could not get the excluded
information before the jury. The Commonwealth argues that the trial court did
not abuse its discretion by keeping the redacted portions of Bond's statement
out of evidence. 5 We address each issue in turn.
The standard of review on evidentiary issues is abuse of discretion. Clark
v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). "The test for abuse of
discretion is whether the trial judge's decision was arbitrary, unreasonable,
5 The Commonwealth also argues that the redacted portions of the statement would not have been admissible under KRE 412. While Bond made an argument regarding KRE 412 to the trial court, he does not make it here. Therefore, we do not address it.
11 unfair, or unsupported by sound legal principles." Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
KRE 106 provides that: When a writing or recorded statement or part
thereof is introduced by a party, an adverse party may require the introduction
at that time of any other part or any other writing or recorded statement which
ought in fairness to be considered contemporaneously with it." A party may
admit otherwise inadmissible hearsay statements pursuant to KRE 106, but
only if "an opposing party's introduction of an incomplete out-of-court
statement would render the statement misleading or alter its perceived
meaning." Schrimsher v. Commonwealth, 190 S.W.3d 318, 330-31 (Ky. 2006)
(footnote omitted). Therefore, we must determine "whether the meaning of the
included portion is altered by the excluded portion."
Commonwealth v. Collins, 933 S.W.2d 811, 814 (Ky. 1996).
The portions of Bond's statement played to the jury included descriptions
of his sexual activity with Hendricks in the early morning hours of May 12,
2010. Bond argues that, to get a complete picture, the jury needed to hear: his
descriptions of their varied and active sex life; his statements that he loved
Hendricks and intended to marry her; his statements that he did not intend to
hurt Hendricks and had not known that he had hurt her; and his statement
that he and Hendricks had engaged in consensual anal sex the preceding
afternoon.•
We agree that the excluded portions of Bond's statements may have
given the jury a more complete description of his relationship to Hendricks.
12 However, after reviewing the transcript, we agree with the trial court that the
exclusion of those portions did not alter the meaning of the included portions.
Furthermore, we note that Bond established through Detective Lesher that
Bond and Hendricks were engaged in consensual anal sex the afternoon of May
11 when Shelby arrived and interrupted them; that Detective Lesher brought
up rough sex and choking; that Bond had accidentally strangled Hendricks;
that Bond denied ever striking Hendricks; and that Bond believed that
Hendricks was not dead when he finished having sex with her. Thus, Bond
was able to get into evidence the majority of what he wanted through Detective
Lesher. Furthermore, the portions Bond was not able to otherwise get into
evidence did not alter the meaning of the included portions. Therefore, we
discern no abuse of discretion in the trial court's refusal to admit Bond's entire
statement.
B. The Trial Court did not Err in Denying Bond's Motion for a Directed Verdict as to the Sodomy Charge.
Bond was convicted of sodomy in the first degree. "A person is guilty of
sodomy in the first degree when: . . . (b) He engages in deviate sexual
intercourse with another person who is incapable of consent because he:
1. Is physically helpless . . . ." KRS 510.070. Bond's conviction was based on
his having had anal sex with Hendricks after she had passed out from drinking
too much alcohol. He argues that the only evidence that Hendricks was
"physically helpless" when he engaged in anal sex with her was his May 13,
2010, statement, which was not, by itself, sufficient to support his conviction.
13 Bond is correct that, pursuant to RCr 9.60, "A confession of a defendant,
unless made in open court, will not warrant a conviction unless accompanied
by other proof that such an offense was committed." However, Bond is
incorrect that there was not sufficient other proof to support his conviction.
The other proof required by RCr 9.60 "relates only to proof that a crime was
committed, not to whether the defendant committed it." Lofthouse v.
Commonwealth, 13 S.W.3d 236, 242 (Ky. 2000). Furthermore, the
corroborating proof need not establish beyond a reasonable doubt that a crime
occurred, and the court may consider that proof in conjunction with a
confession to determine whether a crime occurred. Young v. Commonwealth,
426 S.W.3d 577, 583 (Ky. 2014).
Other than Bond's confession, the Commonwealth presented the
following evidence that Bond engaged in anal sex with Hendricks while she was
unconscious and physically helpless. Shelby testified that Hendricks was
unconscious and clothed when he and Bond dragged her into the bedroom and
left her on the floor. When Shelby went into the bedroom later that night,
Hendricks was nude. The medical examiner testified that she found evidence
of anal tearing and contusions when she examined Hendricks. Although the
medical examiner could not state conclusively that the tearing occurred
through anal sex, she testified that it could have and that the tearing occurred
within hours of Hendricks's death. Furthermore, the medical examiner
testified that Hendricks was significantly intoxicated, and her level of
14 intoxication 6 would have been consistent with her having passed out and
would have impeded her ability to struggle or otherwise resist while being
strangled.
Bond argues that Shelby testified that Bond and Hendricks may have
been having sex when he got to the apartment, which would be consistent with
him having had anal sex with Hendricks several hours before her death, and
would have accounted for her anal injuries. He also argues that the medical
examiner could not conclusively tie Hendricks's anal tearing to anal sex; could
not state whether Hendricks was conscious or not when the tearing occurred;
could not state whether any anal sex was consensual or not; and "could not
state whether the strangulation and the tearing occurred at the same time. All
of that is true. However, the issue is not whether Bond presented proof that
contradicted his statement; the issue is whether the Commonwealth presented
proof that corroborated Bond's statement. As set forth above, the
Commonwealth's other proof, in conjunction with Bond's confession, was
sufficient to establish that the crime of first-degree sodomy occurred. That is
all the Commonwealth was required to prove; therefore, we discern no error in
the trial court's denial of Bond's motion for a directed verdict.
6 The medical examiner testified that Hendricks had a blood alcohol level between 0.317% and 0.38%.
15 IV. CONCLUSION.
For the reasons set forth above, we affirm.
Minton, C.J.; Abramson, Cunningham, Noble and Venters, JJ., sitting.
All concur.
COUNSEL FOR APPELLANT:
Daniel T. Goyette Cicely Jaracz Lambert Office of the Louisville Metro Public Defender
COUNSEL FOR APPELLEE:
Jack Conway Attorney General of Kentucky
James Coleman Shackelford Assistant Attorney General