Welch v. Commonwealth

149 S.W.3d 407, 2004 Ky. LEXIS 276, 2004 WL 2623964

• Court: Kentucky Supreme Court
• Decided: November 18, 2004
• Docket: 2002-SC-0645-MR
• Status: Published

Opinions

LAMBERT, Chief Justice.

Appellant, Christopher Welch, was convicted of one count of sodomy in the first degree and of one count of sexual abuse in the first degree. He was sentenced to a twenty-year term of imprisonment. The charges arose from statements made by Appellant during his treatment at a juvenile sex offender program. Appellant entered a conditional guilty plea to the above charges and reserved the right to appeal the Boyle Circuit Court’s denial of his motion to suppress these statements. The issue here is whether statements made by a juvenile to counselors without Miranda1 warnings during treatment may be used to pursue a new criminal investigation and prosecution.

Appellant was adjudicated as a juvenile sex offender and committed to the Department of Juvenile Justice (“DJJ”). He was sent to Rivendell, a treatment facility, to participate in the juvenile sex offender treatment program. While at Rivendell and participating in the treatment program, Appellant disclosed to his counselor several uncharged acts of sexual misconduct. The counselor notified social workers who then notified the Boyle County Sheriffs Department. Deputy Sheriff Jim Wilcher investigated the allegations and he, along with Kentucky State Police Detective Lisa Rudinski, traveled to Riven-dell to interview Appellant. The officers gave Appellant his Miranda warnings and proceeded to interview him. Appellant gave the officers a full statement in which he confessed to sodomizing a five-year-old child approximately twenty times. Appellant’s confession was consistent with the information previously gathered by Deputy Wilcher from the young child.

Appellant presented evidence at the suppression hearing regarding the juvenile sex offender treatment program and evidence regarding the lack of warnings given to him. The evidence revealed that participation in the juvenile sex offender program is not voluntary, but rather the participants are at these treatment programs by court order and must follow the rules and procedures of the program. The program uses group therapy and group dynamics as a means to further the goals of the program. Participants are strongly encouraged, by counselors and other group members, to admit and disclose all prior sexual misconduct. This fosters treatment and reprogramming of the behavior of those involved. Testimony during the suppression hearing described participation in this part of the program as essential to progress toward completion of the program as ordered by the court. Progress in the program is required to obtain and keep certain privileges during treatment.

Appellant received no warning or notice that his counseling disclosures could result in criminal prosecution. When Appellant made the statements to counselors at Ri-vendell, no Miranda warnings were given. The first time Appellant was made aware of his right to remain silent occurred when he was interviewed at the treatment facility by the police officers. The record does not contain any written verification of waiver at that time. As a result of his statements, Appellant was charged with the offenses herein. Following the denial of his suppression motion, Appellant entered the conditional guilty plea from which this matter of right appeal² is taken.

Appellant argues that the trial court erred when it failed to suppress his statements made to the counselors at .Rivendell. He presents three alternative reasons as to why the statements should have been suppressed: (1) the statements were obtained in violation of Miranda, (2) the statements were involuntary, and (3) the statements were privileged. The Commonwealth argues that such statements made to counselors are not privileged and are voluntary, and that the counselors are not agents of the police.

Appellate review of a motion to suppress is governed by the standard expressed by the Supreme Court of the United States in Ornelas v. United States³ and adopted by this Court in Adcock v. Commonwealth.4, The approach established by the Supreme Court of the United States is a two-step process that first reviews the factual findings of the trial court under a clearly erroneous standard.⁵ The second step reviews de novo the applicability of the law to the facts found.⁶ The only evidence of record was presented by Appellant during the suppression hearing. The Commonwealth did not present any evidence. As summarized hereinabove, we discern no clear error regarding the pertinent factual findings.

Upon review of the law, the initial inquiry must be whether the Fifth Amendment of the United States Constitution or Section 11 of the Kentucky Constitution securing the privilege against self-incrimination is applicable to this situation. The privilege has been held to protect a person from being forced to put forth evidence against himself or herself and “the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.”⁷ Moreover, the privilege is not limited to criminal proceedings and protects in circumstances where the person’s freedom is curtailed.⁸ Here, the unwarned statements made by Appellant while he was in state custody were used to initiate a new prosecution and this type of communication is of a character to require an analysis under the Fifth Amendment and Section 11 of the Kentucky Constitution. Kentucky decisions generally hold Section 11 to be coextensive with the Fifth Amendment.⁹

A custodial interrogation is a prerequisite for invoking the necessity of Miranda warnings.¹⁰ It has been held that “Miranda and its progeny in this Court [the Supreme Court of the United States] govern the admissibility of statements made during custodial interrogation in both state and federal courts.”¹¹ Miranda is not just a prophylactic rule but is rather a constitutionally-based rule of law.¹² Here, Appellant was committed by the court to DJJ and placed in the juvenile sex offender program at the treatment facility. For this reason, Appellant’s participation in the juvenile sex offender program was involuntary. Based upon the court ordered commitment, Appellant was in state custody. During the treatment program, the counselors intensely questioned Appellant, not only about the offense that resulted in the commitment, but also about any other sexual misconduct. The questioning regarding other sexual misconduct was a necessary part of the juvenile sexual offender program where the participants were “strongly encouraged” to admit additional sexual misconduct. Such questioning and encouraged disclosure amounted to coercion in the course of a custodial interrogation.

Another Miranda requirement is state action. The counselors who questioned Appellant were employees of the treatment facility, not law enforcement officers. Generally, questioning by law enforcement is required to trigger the necessity for Miranda warnings. On the other hand, the Supreme Court of the United States has recognized the applicability of Miranda in situations not involving law enforcement. In Estelle v. Smith,¹³ the Court held that a psychiatrist, who performed an involuntary evaluation of the defendant, could not testify regarding information that had been gathered by questioning during the evaluation, because the defendant had not been apprised of his Fifth Amendment rights. The examining physician was not a law enforcement officer, but the Court held that the doctor went beyond a routine examination and gathered information during the evaluation to testify concerning the defendant’s future dangerousness and to assist the prosecution in seeking the death penalty. Here, the counselors gathered information regarding previously undisclosed sexual misconduct and delivered that information to law enforcement officers.

The title and employer of the questioner are not the sole basis for determining state action; rather courts must determine whether the interrogation was such as to likely result in disclosure of information which would lead to facts that would form the basis for prosecution.¹⁴ In this case, the likelihood of such a disclosure was virtually overwhelming. Accordingly, the counselors who interrogated Appellant were state actors for the purpose of the Fifth Amendment, and Appellant should have been informed of his Miranda rights regarding his privilege against self-incrimination.

Supporting this view is State v. Evans,¹⁵ where the Ohio Court of Appeals held that statements disclosed to counselors by a juvenile, who was under involuntary commitment for treatment, were not admissible against the juvenile. The facts in Evans and the facts of this case are very similar, in that both cases dealt with juveniles who had been committed by the court to receive treatment. Another similarity is that both juveniles, upon the encouragement of the treatment program, admitted to prior misconduct that resulted in subsequent prosecution. The Evans court held the appellant’s statements to be inadmissible in violation of the Fifth Amendment. The court held that the appellant was in the “classic penalty” situation wherein the privilege against self-incrimination is self-executing, and he “was unconstitutionally forced to choose between a substantial penalty and self-incrimination.”¹⁶ The Evans court held that the trial court had properly suppressed the appellant’s written and oral confession that he gave at the treatment center. Appellant’s circumstance is not dissimilar and his statements to counselors should have been suppressed.

Appellant further argues that his statements to police should be suppressed as fruit of a poisonous tree.¹⁷ The Commonwealth argues that since the police gave Appellant his Miranda warnings, his statements to them should be admissible. On the contrary, Appellant’s statements made to the police were indeed fruit of a poisonous tree because those statements were obtained as a direct result of information improperly gathered by the counselors at the treatment facility. Without Appellant, the police would have had no source from which to gain information for the new charges against Appellant. Moreover, the statements gathered by the police were not attenuated from the state-merits made to the counselors.¹⁸ Consequently, Appellant’s statements to the police should also have been suppressed.

Supporting this view is a recent United States Supreme Court decision, United States v. Patane,19 which holds that an unwarned but voluntary statement is subject to the exclusionary rule, but that evidence obtained as a result of such a statement is not.²⁰ However, if the confession was coerced and the person to whom the statement was made was a state actor, Patane states that “those subjected to coercive police interrogations have an automatic protection from the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial.”²¹ As we have held Appellant’s confession to the counselors to have been involuntary because coerced by a state actor, and to have led directly to the police investigation and discovery of Appellant’s criminal conduct, his post-Miranda confession to the police and the evidence derived from either confession is inadmissible against him in any subsequent criminal trial.

Since we have decided the case on constitutional grounds, we t need not address the parties’ arguments pertaining to the applicability of KRS 197.440, KRS 635.527, and KRS 620.030(1).

For the foregoing reasons, the judgment of the Boyle Circuit Court is reversed and this cause is remanded for further proceedings consistent with this Opinion.

COOPER, JOHNSTONE, and STUMBO, JJ., concur. KELLER, J., dissents by separate opinion in which GRAVES and WINTER-SHEIMER, JJ., join.

1 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2 . Ky. Const. § 110(2)(b).

3 . 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

4 .Ky., 967 S.W.2d 6 (1998).

5 . Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663.

6 . Id.

7 . In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967).

8 . Miranda, 384 U.S. at 467, 86 S.Ct. at 1624.

9 . See Hourigan v. Commonwealth, Ky., 962 S.W.2d 860, 864 (1998); Commonwealth v. Cooper, Ky., 899 S.W.2d 75, 78 (1995); Newman v. Stinson, Ky., 489 S.W.2d 826, 829 (1972) (holding that the Fifth Amendment and Section 11 of the Constitution of Kentucky provide identical protection against self-incrimination).

10 . See Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

11 . Dickerson v. United States, 530 U.S. 428, 431, 120 S.Ct. 2326, 2329-30, 147 L.Ed.2d 405 (2000).

¹²

13 . 451 U.S. 454, 469, 101 S.Ct. 1866, 1876, 68 L.Ed.2d 359 (1981).

14 . United States v. D.F., 63 F.3d 671, 683-84 (1995), vacated and remanded, 517 U.S. 1231, 116 S.Ct. 1872, 135 L.Ed.2d 169 (1996), remanded to, 115 F.3d 413 (1997) (holding that the Fifth Amendment analysis contained in D.F., 63 F.3d 671 was correct).

15 . 144 Ohio App.3d 539, 760 N.E.2d 909 (2001), discretionary appeal not allowed, 93 Ohio St.3d 1473, 757 N.E.2d 771 (2001).

16 . Id. at 924.

17 . Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).

18 . Id., citing Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939).

19 . - U.S. -, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004).

20 . Id. at -, 124 S.Ct. at 2626

21 . Patane, - U.S. at -, 124 S.Ct. at 2628 (quoting Chavez v. Martinez, 538 U.S. 760, 769, 123 S.Ct. 1994, 2002, 155 L.Ed.2d 984 (2003)).