RENDERED: JULY 14, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0670-MR

ERIN SMITH-SPENCER APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE AUDRA J. ECKERLE, JUDGE

ACTION NO. 18-CR-000905-002

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: EASTON, JONES, AND LAMBERT, JUDGES.

EASTON, JUDGE: The Appellant, Erin Smith-Spencer (“Smith-Spencer”),

appeals an Order of the Jefferson Circuit Court denying his motions to suppress 

statements he made to police detectives during a recorded interview shortly after a 

two-year-old girl in his custody died from blunt force injuries. Smith-Spencer

conditionally pled guilty to complicity to manslaughter in the first degree and 

complicity to criminal abuse in the first degree. He received a ten-year sentence 
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consistent with his plea bargain with the Commonwealth. Upon review, we affirm 

the trial court’s denial of Smith-Spencer’s suppression motions.

FACTUAL AND PROCEDURAL HISTORY

Between November 20-22, 2017, a two-year-old girl (“I.H.”) died 

while in the custody of Smith-Spencer and Tabitha Harris (“Harris”), who was 

I.H.’s mother. An autopsy determined the cause of I.H.’s death was blunt force 

injuries. Disturbing photographs confirm this conclusion.

On November 22, 2017, Smith-Spencer and Harris were taken to the 

police station for questioning by Louisville Metro Police Department (“LMPD”) 

Detectives Chris Middleton (“Middleton”) and Mickey Conn (“Conn”). The 

interviews were video recorded. Both suspects were searched, placed in separate 

interview rooms, and questioned individually by the detectives. Harris was 

questioned first, and Smith-Spencer waited approximately ninety minutes before 

the detectives came in to speak with him for the first time.

Middleton asked Smith-Spencer some administrative questions before 

administering his Miranda1rights, both orally and in writing, via a standard LMPD 

form. Language in the form stated that by signing the form, Smith-Spencer was 

acknowledging he understood his rights and that he could voluntarily waive those 

rights and choose to revoke that waiver at any time. Based upon the incriminating 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 
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statements elicited from Smith-Spencer during this interview, in addition to other 

evidence, Smith-Spencer was indicted for complicity to murder and complicity to 

first-degree criminal abuse for his role in the death of I.H.

Smith-Spencer filed a first Motion to Suppress the statements he made 

to the detectives during the interview. Smith-Spencer claimed in this first motion 

his statements were involuntary and a result of coercion by Conn. He claimed 

police obtained statements from him through “sweating,” and that his statement 

about his Social Security number violated Miranda. Smith-Spencer filed a second 

Motion to Suppress. In this second motion, Smith-Spencer again claimed his 

waiver of his Miranda rights was not voluntary.

The trial court conducted a suppression hearing on February 5, 2019. 

Middleton was the only witness called to testify. The Commonwealth played a 

portion of the video recording of Middleton’s interview with Smith-Spencer. The 

clip showed Middleton asking some administrative questions, then reading SmithSpencer his Miranda rights, and then asking Smith-Spencer to sign a standard form 

which acknowledged that he understood his rights. The form also includes 

language that highlights the voluntary nature of the waiver of those rights.

On cross-examination, defense counsel played several other portions 

of the interview. Middleton admitted Smith-Spencer was in the interview room for 

a total of six hours. But Middleton also explained Smith-Spencer had been in the 
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interview room alone for approximately ninety minutes before his first interview 

began.

Middleton further testified he was in and out of the interview room 

because he was also speaking with Harris and other detectives during the same 

time. In total, throughout the six hours, Smith-Spencer was interviewed for 

approximately two hours. The interview did not become confrontational (no

yelling or cursing at Smith-Spencer). The interview focused on inconsistencies 

between what the police knew about the circumstances surrounding I.H.’s death 

and what Smith-Spencer was relaying to them during the interview. 

Following the suppression hearing, the trial court took this matter 

under submission and ultimately entered an order denying Smith-Spencer’s 

suppression motions. The trial court determined that Middleton “clearly and 

unequivocally” explained Smith-Spencer’s rights to him. Smith-Spencer

“knowingly and voluntarily” waived them. Smith-Spencer never requested an 

attorney, never requested to terminate the interview, and never chose to invoke his 

right to remain silent.

The trial court held that Middleton’s conduct did not overbear SmithSpencer’s will nor did it “offend due process.” For this conclusion, the trial court 

cited Meece v. Commonwealth, 348 S.W.3d 627, 651-52 (Ky. 2011). Finally, the 

trial court held the detectives’ actions were neither objectively coercive nor 
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unreasonable. The trial court conceded that it may have been preferable for 

Middleton to read Smith-Spencer his rights at the very beginning of the interview, 

but the administrative biographical information (Social Security number) 

Middleton gathered from Smith-Spencer did not prejudice Smith-Spencer and did 

not warrant suppression. 

Following the denial of his suppression motions, a jury trial resulted 

in a hung jury. Before any retrial, Smith-Spencer later agreed to enter a 

conditional guilty plea. Smith-Spencer pled guilty to complicity to first-degree 

manslaughter and first-degree criminal abuse. Smith-Spencer was sentenced in 

accordance with the agreement and received a ten-year sentence. This appeal 

followed.

STANDARD OF REVIEW

On appellate review of a trial court’s denial of a 

motion to suppress, we generally apply the two-step 

process set out in Ornelas v. United States, 517 U.S. 690, 

116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996), and adopted 

by Kentucky in Adcock v. Commonwealth, 967 S.W.2d 6 

(Ky. 1998). Under this standard we review the trial 

court’s findings of fact for substantial evidence, id. at 8, 

and then conduct a de novo review of the trial court’s 

application of the law to the established facts to 

determine whether its ruling was correct as a matter of 

law, Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.

2004).

Dye v. Commonwealth, 411 S.W.3d 227, 230-31 (Ky. 2013).
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ANALYSIS

After extensive review of the written and video record, this Court 

finds no error, much less a clearly erroneous one, in the factual findings of the trial 

court. Smith-Spencer was taken to the police station and placed in an interview 

room. While he was alone for the first approximately ninety minutes, he

demonstrated no signs of agitation.

At the suppression hearing, Middleton testified the questioning was in

the middle of the afternoon. Smith-Spencer was not handcuffed nor restrained in 

any way. Following the first solitary period, Middleton asked Smith-Spencer to 

provide several pieces of biographical information, an act which falls outside of 

custodial questioning. “[S]tandard booking questions (such as height, age, name, 

and date of birth) are always permissible under Muniz, even if they may be 

incriminating in effect.” Jones v. Commonwealth, 641 S.W.3d 162, 170 (Ky. 

2022); Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528

(1990).

Middleton provided Smith-Spencer with a written copy of the 

Miranda warnings, in addition to going over them verbally. Smith-Spencer signed 

the document provided to him, which stated that by signing the document he was 

waiving these rights. The question is whether Smith-Spencer’s subsequent waiver 

was knowing, intelligent, and voluntary. The Commonwealth has the burden of 
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proof and must demonstrate by a preponderance of the evidence that SmithSpencer’s rights were knowingly, intelligently, and voluntarily waived. Cox v. 

Commonwealth, 641 S.W.3d 101, 114 (Ky. 2022).

Middleton clearly shared Smith-Spencer’s rights with him, both orally 

and in writing. Nothing in the record demonstrates Smith-Spencer suffers from 

any mental deficiencies. The record contains many pro se motions, although 

Smith-Spencer was represented by appointed counsel. In these motions, SmithSpencer had no difficulty asserting his rights and providing detailed explanations 

of his positions.

Smith-Spencer did not appear confused and did not ask for any 

clarification during his interrogation. There was no evidence that Smith-Spencer

was intoxicated or under the influence. Both the “knowing” and “intelligently” 

factors were met. For these reasons, we look only to the overall voluntary nature 

of Smith-Spencer’s waiver. A preponderance of the evidence must demonstrate 

that Smith-Spencer made an uncoerced choice to abandon his constitutional rights.

Id.

The Due Process Clause of the Fourteenth Amendment 

prohibits the admission of involuntary confessions: “[if 

the defendant’s] will has been overborne and his capacity 

for self-determination critically impaired, the use of [the] 

confession offends due process.” Schneckloth v. 

Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047, 

36 L. Ed. 2d 854 (1973). “The voluntariness of a 

confession is assessed based on the totality of the 
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circumstances surrounding the making of the 

confession.” Mills v. Commonwealth, 996 S.W.2d 473, 

481 (Ky. 1999). However, the threshold question to a 

voluntariness analysis is the presence or absence of 

coercive police activity: “coercive police activity is a 

necessary predicate to the finding that a confession is not 

Voluntary’ within the meaning of the Due Process Clause 

of the Fourteenth Amendment.” Colorado v. Connelly,

479 U.S. 157, 167, 107 S. Ct. 515, 522, 93 L. Ed. 2d 473, 

484 (1986).

Dye, supra at 232.

To determine if a confession was the result of coercion, the factors to 

consider are 1) if police activity was “objectively coercive,” 2) if said coercion 

overbore the will of the individual, and 3) whether the coercive police activity was 

the “crucial motivating factor” behind the confession. Sykes v. Commonwealth, 

453 S.W.3d 722, 725 (Ky. 2015) (citing Morgan v. Commonwealth, 809 S.W.2d 

704, 707 (Ky. 1991)). 

The facts demonstrate Smith-Spencer’s will was not overborne, nor 

did the behavior of Middleton offend due process. Middleton used a form that 

enumerated Smith-Spencer’s rights and acted as a written waiver of those rights. 

Middleton asked Smith-Spencer to sign the form he had read to him, saying “I 

need you to sign right there for me.” Neither these words, nor their tone, suggest 

the kind of coercive pressures Miranda seeks to prevent. 

In the questioning that followed, Smith-Spencer never chose to invoke

his right to remain silent or his right to counsel. Middleton and Conn were 
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persistent in their questioning, but neither detective was physically or emotionally

aggressive. Neither detective made any threats nor promises to Smith-Spencer

during the interrogation. Bustamonte tells us that, in the context of the primary 

question of voluntariness, we must look at the totality of the circumstances, 

including the characteristics of the accused and the details of the interrogation. 

412 U.S. at 226, 93 S. Ct. at 2047. Further, Bustamonte gives us factors to 

examine such as age, lack of education, low intelligence, lack of advisement of 

Miranda, length of detention, prolonged questioning, and physical punishment. Id.

The only factor which weighs in Smith-Spencer’s favor is the amount 

of time he was in the interview room. In total, it was approximately six hours, with 

only two hours of questioning. The case at hand can be easily distinguished from 

other cases which found the length of questioning to be coercive, such as Reck v. 

Pate, 367 U.S. 433, 81 S. Ct. 1541, 6 L. Ed. 2d 948 (1961), where the defendant 

was subjected to six to seven hours of questioning each day for four days; Fikes v. 

State of Alabama, 352 U.S. 191, 77 S. Ct. 281, 1 L. Ed. 2d 246 (1957), which 

included questioning for several hours at a time over five-day period; and Turner v. 

Commonwealth of Pennsylvania, 338 U.S. 62, 69 S. Ct. 1352, 93 L. Ed. 1810

(1949), where the defendant was questioned from four to six hours a day for five 

days. This case is well below the threshold of coercion for the purposes of 
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Miranda and is especially outweighed by this being the only Bustamonte factor in 

Smith-Spencer’s favor.

As stated previously, Smith-Spencer was not handcuffed or physically 

restrained. He asked to use the restroom once, and he was allowed to do so. He 

also asked for water at one point, with which he was provided. The interview 

happened during the day, not in the middle of the night, when Smith-Spencer

might have been denied adequate sleep. 

We will also address some specific assertions raised by SmithSpencer. Smith-Spencer asserts that the questioning by Conn rose to such a level 

as to subvert the protections of Miranda. While this Court concludes that SmithSpencer’s waiver was made knowingly, intelligently, and voluntarily, SmithSpencer specifically references these statements by Conn:

Something else happened, and it may have been an 

accident . . . . It didn’t happen from her falling over 

by herself. That’s what you have to tell us. In order 

for us to go forward, you have to tell us what 

happened right there in that moment in time.

[VTS_01_4 at 5:52.]

He continued:

If you just say ‘I f**cked up. This is what happened. 

I made a mistake.’ It speaks volumes for your 

character and for what ac- you know, for your intent 

or your non-intent. See what I’m saying? Something 

happened. It is not a question. We are not asking you 

did something happen. We know it happened. What 

happened? And you have to tell us. [Id. at 6:37.]
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While these statements demonstrate a clear desire of Conn for SmithSpencer to share information, they do not arise to the coercive pressures proscribed 

by Miranda. Smith-Spencer argues that these statements amount to deception 

about the rights protected by Miranda. We disagree. Smith-Spencer cites Leger v. 

Commonwealth, 400 S.W.3d 745 (Ky. 2013) in support. We find the facts in Leger 

distinguishable from the facts at hand, as the interviewing officer in Leger led the 

defendant to believe his answers would be confidential, despite having been 

advised of his Miranda rights. Id.

No such promise was made here. Smith-Spencer was informed of his 

rights at the commencement of this interview, and never once chose to invoke 

those rights either explicitly or implicitly. These statements and questions by Conn 

do not go beyond the scope of police questioning and are a far cry from cases like 

Gray v. Commonwealth, 480 S.W.3d 253 (Ky. 2016), where police used fabricated

physical evidence to coerce a confession, or Lynumn v. Illinois, 372 U.S. 528, 83 S. 

Ct. 917, 9 L. Ed. 2d 922 (1963), where police used fabricated information to 

emotionally coerce a defendant into a confession.

The detectives in this case used actual information at their disposal to

draw the truth from Smith-Spencer during a valid custodial interrogation. There 

was no more coercion in this case than there is in any typical interaction with the 
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police in interrogation about such cases. See Michael v. Butts, 59 F.4th 219, 228-

29 (6th Cir. 2023) (case from the Western District of Kentucky). 

Smith-Spencer also takes issue with another line of questioning by 

Conn where he analogized this case with another case:

We went for hours and hours talking to the same guy 

about the same type of thing. You know what 

eventually what he did? Eventually he grabbed this 

kid, picked it up, and dropped him in the crib. Right? 

But he didn’t want to say that at first. He went around 

and around like, “well, the kid just fell and hit his 

head against the side of the crib.” We’re like, man, 

there’s no way that a kid falls, hits his head against a 

wood spindle, and it causes that kind of head injury. 

And once he finally told us, “man I, yeah, I was 

frustrated, I just dropped him in the crib, he hit the 

crib, bounced around, his head hit the rails. That’s 

what happened. And we were like, “thank you.”

That’s what we’ve been trying to get from you.” 

[VTS_01_4 at 21:40.]

Conn continued:

So, we’re at that same place with you. With you 

saying, “well, she was standing there, she fell over a 

couple of times. She fell over a couple of times 

walking across the floor, she fell over a couple of 

times.” You keep saying she fell over a couple times. 

That’s, that’s not, that’s not what happened, first of 

all, all by itself. Second of all, it’s hurting you. 

Because you are not telling us what happened. You 

know, once you tell us what happened, that’s what is 

going to help you.” [Id. at 22:43.]
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For the same reasons, we do not find this to be coercive. Shortly after 

this statement by Conn, Smith-Spencer confessed to dropping I.H. Prior to this 

confession, the detectives knew the evidence they had was not lining up with what 

Smith-Spencer was telling them. It was their prerogative to draw the truth out of 

Smith-Spencer with the type of questioning they used. Perhaps the truth was that 

his co-defendant or a third party had caused the injuries and death, or perhaps it 

was the result of a horrible accident. It was only Smith-Spencer (and perhaps 

Harris) who were able to answer this question. The detectives did not stretch the 

truth beyond what is allowed to properly perform their investigative duties. They 

did not subvert Miranda and obtained a valid confession from Smith-Spencer.

CONCLUSION 

Middleton’s administration of Smith-Spencer’s Miranda rights was 

adequate. Smith-Spencer knowingly, intelligently, and voluntarily waived those 

rights. The questioning by Middleton and Conn did not put undue coercive 

pressure on Smith-Spencer. For these reasons, the trial court did not err in denying 

Smith-Spencer’s motions to suppress his confession and is therefore AFFIRMED.

ALL CONCUR. 
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BRIEFS FOR APPELLANT:

Jared Travis Bewley 

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General 

Frankfort, Kentucky