RENDERED: JULY 14, 2023; 10:00 A.M. NOT TO BE PUBLISHED 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

- C R

- 000 905

- 002

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
**   **  ** BEFORE: EASTON, JONES, AND LAMBERT, JUDGES. EASTON, JUDGE: The Appellant, Erin Smith

- Spencer (“Smith

- Spencer ”) , appeal s an Order o f the Jefferson Circuit Court denying his m otion s to s uppress statements he made to police detectives during a recorded interview shortly after a
two

- year - old girl in his custody d ied from blunt force injuries

. Smith

- Spencer conditionally pled guilty to c omplicity to m anslaughter in the f irst d egree and

c omplicity to c riminal a buse in the f irst d egree . He received a ten

- year sentence- 2

-

consistent with his plea bargain with the Commonwealth

. Upon review, we affirm th e 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 Co n n (“Conn”)

. The interview s were video recorded. Both suspects were searched, placed in sepa rate 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 Miranda 1 rights, 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 cho o se 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)

.- 3

-

statements elicited from Smith

- Spencer during this interview , in addition to other evidence , Smith

- Spencer w as indicted for c omplicity to m urder and c omplicity to
f irst

- d egree c riminal a buse for his role in the death of I.H.

Smith

- Spencer filed a first M otion to S up p ress the statements he made to the d etectives during the interview

. Smith

- Spencer claimed in th is first motion his statements were involuntary and a result of coercion by Conn

. He claimed
p olice obtained statements from him through “sweating,” and that his statement about his Social Security n umber violated Miranda

. Smith

- Spencer filed a second
M otion to S uppress . I n 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. T he 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 Smith

Spencer his Miranda rights, and then asking Smith

- Spencer to sign a sta ndard 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 intervie w . 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- 4

-

interview room alone for approximately ninety minutes before his first interview began. Middleton further tes tified 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 c onfrontational ( 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 th e suppression hearing, the trial court took this matter under submission and ultimately entered an order denying Smith

- Spencer ’s suppression m otion s . The trial court determined that Middleton “clearly and unequi vocally ” 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.

T he trial court held that Middleton’s conduct did not overbear Smith

Spencer ’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- 5

-

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 ( S ocial S ecurity number) Middleton gathered from Smith

- Spencer did not prejudice Smith

- Spencer and did not warrant suppression.

Following the denial of his suppression m otion s , 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 c omplicity to f irst

- d egree

m anslaughter and f

irst

- d egree c riminal a

buse

. 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, i d. 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. Com monwealth , 411 S.W.3d 227, 230

- 31 (Ky. 2013)

.- 6

- A NALYSIS After extensive review of the written and video record, this Court finds no error , much less a clearly erroneous one, i n 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 n or restrained in
any way . Following th e 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 warning s , 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 w hether Smith

- Spencer ’s subsequent waiver was knowing, intelligent, and voluntary. The Commonwealth has the burden of- 7

-

proof and must demonstrate by a preponderance of the evidence that Smith

Spencer ’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

. N othing in the record demonstrates Smith

- Spencer suffers from

a ny mental deficiencies

. The record contains many pro se motions, although Smith

- Spencer was represented by appointed counsel. In these motions, Smith

Spencer had no difficulty asserting his rights and providing detailed explanations of his positions.

Sm ith

- 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”
factor s w ere 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 t he 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. Bustam onte , 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- 8

- 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 th e 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 mot ivating 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- 9

-

persistent in their questioning , but neither detective was physically or emotionally aggressive

. Neither d etective made any threats nor promises to Smith

- Spencer during the inte rrogation. 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

. F urther, 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 Smi th

- 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 Ala bama , 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. Com monwealth 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 d ays . Th is case is well below the threshold of coercion for the purposes of- 10

-

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 , whe n S mith

- Spencer might have been denied adequate sleep.

W e will also address some specific assertions raised by Smith

Spencer

. Smith

- Spencer asserts that the questioning by Conn rose to such a level as to subvert the protections of Miranda

. While this Cou rt conclude s that Smith

Spencer ’s waiver was made knowingly, intelligently, and voluntarily , Smith

Spencer s pecifically 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 ask ing you did something happen. We know it happened. What happened? And you have to tell us. [ Id. at 6:37

. ]- 11

- While these statements demonstrate a clear desire of Conn for Smith

Spencer to share information, they do not arise to the coercive pressures pr oscribed 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 be yond the scope of police q uestioning 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. T here was no more coercion in this case than there is in any typical interaction with the- 12

-

police in interrogation about such cases

. See Michael v. Butts , 5 9 F.4 th 219 , 228

- 29 (6th Cir. 2023) (case fro m t he 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

. H e went around and around like , “ well, the kid just fell and hit his head against the side of the cri b.” 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 yo u . ” [ VTS_01_4 at 21:40

. ] Conn continued : S o , we ’ re at th at 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 ove r 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

. ]- 13

- 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 th ird 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. T he d etectives did not stretch the truth beyond what is allowed to pro perly 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 t rial court did not err in d enying Smith

- Spencer ’s m otion s to suppress his confession and is therefore AFFIRMED.

ALL CONCUR

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-

BRIEF S FOR APPELLANT: Jared Travis Bewley Frankfort, K entucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, K entucky