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THE ACTION. 
RENDERED: AUGUST 24, 2023

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0552-MR

ANTHONY STALCUP APPELLANT 

v. 

ON APPEAL FROM MCCRACKEN CIRCUIT COURT

HONORABLE TIMOTHY KALTENBACH, JUDGE

NO. 19-CR-00679

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Appellant Anthony Stalcup (Stalcup) shot and killed Judy Stalcup (Judy)

in July 2019. When the police interviewed Stalcup, he initially stated that 

Judy had shot herself, but later stated that he accidentally shot Judy. A grand 

jury indicted Stalcup for murder and possession of a handgun by a convicted 

felon. Stalcup went to trial on the murder charge and a jury found him guilty.1 

After Stalcup entered a guilty plea to being a convicted felon in possession of a 

handgun, the trial court sentenced Stalcup to a total of forty-three (43) years in 

prison. The single issue on appeal is whether the trial court erred by only 

1 The charge of being a convicted felon in possession of a handgun was severed, 

to be tried in the second phase of the trial. Stalcup entered an open plea to the 

possession charge after the jury began deliberating whether he was guilty of 

committing murder.
2

partially granting Stalcup’s motion to suppress statements made to the police. 

Upon review, we affirm the trial court’s suppression order.

FACTUAL AND PROCEDURAL BACKGROUND

Stalcup and Judy, his ex-wife, lived together in Paducah. Aileen and 

Edwin were their next-door neighbors. Cody was another neighbor. On July 9, 

2019, the day before Judy was killed, Judy told Aileen that she was leaving 

Stalcup again. According to Cody, on that same day, Stalcup came to his 

house to “cool off.” Stalcup told Cody that he and Judy had gotten into a fight 

and that he had a gun, “but he didn’t want to go there.” Stalcup talked with 

Cody a little longer and then went home. Cody testified that Stalcup looked 

intoxicated and smelled of alcohol.

The next day, Stalcup called Edwin and said he shot Judy. Aileen and 

Edwin went to the Stalcup residence. When Aileen and Edwin arrived, Judy 

was slumped over in a recliner. Stalcup was sitting on the couch facing the 

victim, saying, “What am I going to do?” Aileen detected a faint pulse and 

called 911. McCracken County Sheriff officers and detectives responded to the 

scene and investigated the shooting.

When Sergeant Ray arrived at the scene, Stalcup was sitting on the 

couch talking on the phone. Sergeant Ray observed that the victim was shot 

under her right arm and detected a faint pulse. Stalcup smelled of alcohol and 

was unsteady on his feet when he was ordered to get up and to leave the 

residence. Stalcup told Sergeant Ray that the victim had shot herself and he 

didn’t know where the gun was. Pursuant to a warrant, the home was 
3

searched, and two handguns were located. One of the handguns was found 

where Stalcup had been sitting and was wrapped in a towel.

Detective Norman also responded to the 911 call for a possible selfinflicted gunshot wound. After the paramedics removed the victim from the 

home, Detective Norman asked Stalcup if he would go to the office for an 

interview. Stalcup said he would. Because Stalcup had been drinking, a 

deputy gave Stalcup a ride to the sheriff’s office.

During the first hour of the interview, Stalcup claimed that the victim 

shot herself. During the second hour, after being read his Miranda2 rights, 

Stalcup admitted to shooting the gun but claimed he accidentally shot the 

victim. In this vein, Stalcup first stated that he was lying on the couch with a 

pillow under his head, that the gun was under it, and that he was trying to kill 

himself. However, he later stated that he was trying to scare the victim and 

that he didn’t think the bullet would hit Judy, even though she was sitting a 

foot away. Stalcup told Detective Norman where he placed the gun after he 

shot Judy.

Stalcup moved pretrial to suppress all statements he made to police on 

or about July 10, 2019, the day of his arrest. The trial court granted Stalcup’s 

motion in part. While Stalcup argued that his Fifth Amendment rights against 

compelled self-incrimination were violated throughout the whole interview, the 

2 Miranda v. Arizona, 384 U.S. 436 (1966).
4

trial court concluded that Stalcup was not in custody until Detective Norman 

read Stalcup his Miranda rights, which was about an hour into the three-hour 

interview. However, after being Mirandized, Stalcup continued the interview for 

another hour before requesting an attorney.3 The trial court suppressed 

incriminating statements made by Stalcup after he invoked his right to 

counsel.

At trial, Detective Norman testified about the interview. In addition to 

testifying about Stalcup’s inconsistent statements about the shooting, 

Detective Norman testified about Stalcup’s description of his arguments with 

Judy leading up to the shooting, the reason Stalcup provided for not rendering 

aid to Judy although he appeared aware of the severity of the injury, and 

Stalcup’s description of his positioning on the couch with the gun. 

Detective Coffman also testified at trial. During the investigation, 

Detective Coffman collected a hollow point bullet at the victim’s autopsy. 

Detective Coffman found fibers at the end of the bullet. The fibers were 

consistent with a pillow found in Stalcup’s residence. That pillow had a hole 

consistent with a bullet and other tears, markings, and soot consistent with 

that from a discharged firearm. The investigators charted the direction of the 

bullet using a dowel rod and concluded that Stalcup had pointed the gun at 

the victim at close range.

3 Stalcup’s appeal does not challenge the waiver of his Miranda rights.
5

Stalcup was charged with and subsequently indicted for committing 

murder and possession of a handgun by a convicted felon. Stalcup was tried 

on the murder charge first. The jury returned a guilty verdict and 

recommended that Stalcup serve thirty-five years in prison.

4 Rather than going 

to trial on the possession of a handgun by a convicted felon charge, Stalcup 

entered a guilty plea. The trial court imposed a prison sentence totaling fortythree years, thirty-five years for committing murder and a consecutive eight 

years for possession of a handgun by a convicted felon. This appeal followed. 

ANALYSIS

Stalcup challenges the trial court’s ruling that only part of Stalcup’s 

statement to police was taken in violation of the Fifth Amendment. His 

argument has two parts. First, Stalcup argues that a closer analysis of the 

totality of the circumstances indicates that he was in custody and should have 

been advised of his rights earlier. In particular, he claims he was subjected to 

custodial interrogation from the moment questioning began. Second, he claims 

the detective used the “question first” technique during interrogation to 

circumvent Miranda, a technique prohibited by Missouri v. Seibert.5

When reviewing on appeal a trial court’s order denying suppression of 

evidence, the factual findings are reviewed for clear error, meaning that the

4 The jury was also instructed on first-degree manslaughter, second-degree 

manslaughter, reckless homicide, and voluntary intoxication.

5 542 U.S. 600, 617 (2004).
6

trial court’s findings of fact will be conclusive if they are supported by 

substantial evidence.6 When the factual findings are supported by substantial 

evidence, the next question, subject to a de novo review, is whether the law was 

properly applied to the established facts.

7

The trial court’s order with findings of fact and conclusions of law is 

thorough. The trial court’s factual findings include that “[a]fter asking Stalcup 

. . . to exit the residence, an officer grabbed Stalcup by the arm and pulled him 

to the door, causing Stalcup to fall to the ground,” and that “[o]n the way to the 

sheriff’s office, the officer apologized to Stalcup for pulling him to the ground, 

explaining their concern for officer safety and quickly attending to the victim. 

On the body cam video, the officer and Stalcup can be seen shaking hands 

before heading into the sheriff’s office.” Also in relation to the circumstances at 

the residence, the trial court found that “Stalcup was asked to come to the 

sheriff’s office to be interviewed about the incident and he agreed. Because 

Stalcup had been drinking, Stalcup accepted a ride from the officers.” The trial 

court further found that Detective Norman informed Stalcup at some point 

prior to the interview that he was free to leave and that Stalcup was told prior 

to the interview that he was not under arrest. The trial court also found that 

the interview took place in a small, windowless room; Stalcup was asked to sit 

against the back wall of the interview room; Detective Norman sat between 

Stalcup and the door; Stalcup was not restrained and went to the restroom 

6 Davis v. Commonwealth, 484 S.W.3d 288, 290 (Ky. 2016) (citations omitted).

7 Id. (citations omitted).
7

unaccompanied several times during the interview; and Detective Norman 

testified that the door remained open when he was not in the room.

Because Stalcup does not challenge the trial court’s findings of fact as 

being unsupported by substantial evidence8 and we conclude upon review that 

Detective Norman’s testimony during the suppression heading, the recorded 

interview, and officer body camera video9 is substantial evidence supporting 

the findings of facts, we turn to Stalcup’s argument that the trial court erred as 

a matter of law in concluding that he was not in custody until he was read the 

Miranda warning.

The trial court found that there was a show of physical force by the 

officers when Stalcup was pulled to the ground at his residence, and as a 

8 With regard to the findings of fact, Stalcup complains that the trial court 

should have made other factual findings supportive of a conclusion that he was in 

custody earlier than the trial court concluded. For example, while the trial court 

found that Stalcup went to the restroom unaccompanied several times during the 

interview, Stalcup points out that while waiting for the interview to begin, he asked 

permission to use the restroom from someone outside the room. He asserts this 

request for permission to use the restroom indicates that he did not subjectively 

believe he was free to leave, and while not the focus of the inquiry, under 

Commonwealth v. Lucas, 195 S.W.3d 403, 406 (Ky. 2006), his subjective belief is 

relevant to a custody determination.

9 Stalcup’s appellate arguments rely in part on the findings of fact and 

conclusions of law related to the officers’ actions at Stalcup’s residence and prior to 

entering the sheriff’s office for the interview. These actions were recorded on the 

officers’ body cameras. However, the body camera video is not part of the record on 

appeal; unlike the video of Detective Norman’s interview of Stalcup, appellate counsel 

did not move this Court to supplement the record on appeal with body camera video. 

While appellate counsel makes arguments related to the officer’s show of force at his 

residence, Stalcup does not argue that the trial court’s related factual findings were 

not supported by substantial evidence. Thus, even though the officers’ body cam 

video is not part of the record on appeal, we view the trial court’s findings of fact as 

conclusive. See Coleman v. Commonwealth, 100 S.W.3d 745 (Ky. 2002), overruled on 

other grounds by Bratcher v. Commonwealth, 424 S.W.3d 411 (Ky. 2014).
8

matter of law, considered this factor when determining whether Stalcup was in 

custody at the time of the interrogation. The trial court also concluded that the 

interaction which followed between Stalcup and the officer, the officer 

apologizing to Stalcup and shaking his hand, tempered any semblance of 

custody from the previous interaction. Stalcup argues, however, that based 

upon the officers’ actions, he was always in custody for Miranda purposes. 

It is fundamental that the “Fifth Amendment privilege is not violated by 

even the most damning admissions” unless the admissions are a result of some 

official coercion,

10 that the Miranda warning is intended to protect against 

inherent coercive custodial interrogation,11 and that “Miranda warnings are 

required only where there has been . . . a restriction on the freedom of an 

individual as to render him in custody.”

12

Custodial interrogation has been defined as questioning initiated 

by law enforcement after a person has been taken into custody or 

otherwise deprived of freedom of action in any significant way. . . . 

The inquiry for making a custodial determination is whether the 

person was under formal arrest or whether there was a restraint of 

his freedom or whether there was a restraint on freedom of 

movement to the degree associated with formal arrest.13

Stalcup cites Smith v. Commonwealth14 and Howes v. Fields,

15 in support 

of his argument that he was in custody from the point of the officer’s show of 

10 Smith v. Commonwealth, 312 S.W.3d 353, 358 (Ky. 2010) (quoting Oregon v. 

Elstad, 470 U.S. 298 (1985)).

11 Id. (citing Michigan v. Mosley, 423 U.S. 96 (1975)).

12 Id. (quoting Lucas, 195 S.W.3d at 405).

13 Id. (citations and internal quotation marks omitted).

14 Id.

15 565 U.S. 499, 515 (2012).
9

force. Stalcup relies on Smith’s statement that “[c]ustody does not occur until 

police, by some form of physical force or show of authority, have restrained the 

liberty of an individual,”16 to argue that such physical force occurred when the 

officer removed Stalcup from his residence and consequently he was always in 

custody. Smith, however, further explains that when determining whether an 

individual is in custody, “[t]he test is whether, considering the surrounding 

circumstances, a reasonable person would have believed he or she was free to 

leave,”

17 and pertinently, that factors which suggest a seizure has occurred and 

that a suspect is in custody include the threatening presence of several officers; 

the display of a weapon by an officer; the physical touching of the suspect; and 

the use of tone of voice or language that would indicate that compliance with 

the officer’s request would be compelled.18 Thus, as considered by the trial 

16 312 S.W.3d at 358 (citing Baker v. Commonwealth, 5 S.W.3d 142, 145 (Ky. 

1999)).

17 Id. 

18 Id. (citing United States v. Mendenhall, 446 U.S. 544, 554 (1980)). Citing 

United States v. Salvo, 133 F.3d 943, 950 (6th Cir. 1998), Smith, id. at 358-59, also 

notes that 

[o]ther factors which have been used to determine custody for Miranda

purposes include: (1) the purpose of the questioning; (2) whether the 

place of the questioning was hostile or coercive; (3) the length of the 

questioning; and (4) other indicia of custody such as whether the suspect 

was informed at the time that the questioning was voluntary or that the 

suspect was free to leave or to request the officers to do so, whether the 

suspect possessed unrestrained freedom of movement during 

questioning, and whether the suspect initiated contact with the police or 

voluntarily admitted the officers into the residence and acquiesced to 

their requests to answer some questions.
10

court, an officer’s show of physical force is only one factor in the determination 

of whether a defendant was in custody at the time of the interrogation.

19

While the trial court explained that an officer’s show of physical force is 

only one factor for consideration in the custody analysis, Stalcup essentially 

argues that in his case, when analyzed properly, that factor should be given the 

most weight. Stalcup cites Howes for the premise that the custody analysis 

does not have a handshake and apology exception after an officer’s show of 

force. 

Howes lists relevant factors for determining how a suspect would have 

“gauged his freedom of movement,” such as the location of the questioning, its 

duration, statements made during the interview, the presence or absence of 

physical restraints during the questioning, and the release of the interviewee at 

the end of the questioning.20 Howes, like Smith, expresses the long recognized 

principle that courts must examine “all the circumstances surrounding the 

interrogation.”

21 In contrast to Stalcup’s framing, “exceptions” are not part of 

the analysis. Indeed, within its totality of the circumstances analysis, Howes

explained that circumstances of that case indicative of custody were “offset by 

others.”

22 Thus, as to whether Stalcup was in custody at the time of the 

interview, when considering the totality of the circumstances, the trial court 

19 See id. at 358.

20 Id. at 509.

21 Id.

22 Id. at 515.
11

considered the officer’s show of force, the officer’s subsequent interaction with 

Stalcup, as well as the other pre-interview circumstances, such as: Stalcup 

agreed to the interview, Stalcup accepted a ride with an officer because he had 

been drinking, Stalcup was not restrained, and Detective Norman informed 

Stalcup prior to the interview that he was free to leave, and that he was not 

under arrest. 

Furthermore, the trial court considered that the interview lasted over 

three hours and that during the first hour the atmosphere of the interview was 

casual. During this portion of the interview, Stalcup relayed his version of how 

Judy was shot, claiming it was suicide. Detective Norman’s tone was relaxed 

and non-confrontational. However, when Stalcup mentioned that he was 

scared, Detective Norman read Stalcup his Miranda rights.

The second hour of the interview, following the Miranda warning, was 

more confrontational. After Stalcup admitted to shooting the victim but 

claimed it was an accident, Detective Norman questioned Stalcup about 

inconsistencies between his version of the events and evidence. After Detective 

Norman called Stalcup a liar, Sheriff Carter entered the room and joined the 

interview. Considering the established facts of the questioning, like the trial 

court, we conclude that Stalcup was not in custody until Detective Norman 

gave the Miranda warning. Up until that point, a reasonable person in 

Stalcup’s position would feel free to terminate the interview and leave.

As noted above, the second part of Stalcup’s argument is that his 

statements should have been suppressed because the detectives used the 
12

“question first” technique to circumvent Miranda, a technique which Seibert23

found to be impermissible. Because this argument is unpreserved, Stalcup

requests palpable error review. 

In Seibert, the United States Supreme Court addressed whether a police 

protocol for custodial interrogation violated Miranda.

24 The protocol is 

described as a two-stage interrogation: “At any point during the pre-Miranda

interrogation, usually after arrestees have confessed, officers . . . read the 

Miranda warnings and ask for a waiver. If the arrestees waive their Miranda

rights, officers will be able to repeat any subsequent incriminating statements 

later in court.”25 “Although [the pre-Miranda] statement is generally 

inadmissible, since taken in violation of Miranda v. Arizona, the interrogating 

officer follows it with Miranda warnings and then leads the suspect to cover the 

same ground a second time.”

26 Seibert concluded that as the technique was 

used in that case to circumvent the suspect’s Miranda rights, the “question 

first” technique was invalid and the post-Miranda repeated statements were not 

admissible.27 Pertinently, in contrast to this case, all of the Seibert defendant’s 

statements were taken during a custodial interrogation. Although uncited by 

Stalcup, Peacher v. Commonwealth,

28 is precedent which establishes that 

23 542 U.S. 600.

24 Id. at 604.

25 Id. at 609-10 (citations omitted).

26 Id. at 604 (internal citation omitted).

27 Id. at 616-17.

28 391 S.W.3d 821, 849 (Ky. 2013).
13

Stalcup does not have a viable argument for suppression of his statements 

under Seibert.

In Peacher, like in this case, the Court first addressed whether the 

defendant was in custody prior to being advised of his Miranda rights.29 The 

Court agreed with the trial court that the defendant was not in custody until 

the fourth interview segment and at that time, the defendant was properly 

advised of his rights.30 The Court next addressed the defendant’s argument 

that he was subjected to the “question first, then Mirandize ” technique.

31 The 

Court explained that it was not possible for the defendant’s case to run afoul of 

Seibert;

32 that is, unlike the Seibert defendant who was in custody from the 

beginning of the interview, the Court had concluded that the defendant was not 

in custody prior to being Mirandized. Like in Peacher, with our conclusion that 

Stalcup’s questioning prior to being read his Miranda rights was non-custodial,

Seibert is inapposite to Stalcup’s case and cannot afford relief.

CONCLUSION

For the foregoing reasons, we affirm the McCracken Circuit Court’s order 

partially granting the suppression motion, and therefore affirm its judgment 

and sentence.

All sitting. All concur. 

29 Id. at 846-49.

30 Id. at 846, 849.

31 Id. at 849.

32 Id.
14

COUNSEL FOR APPELLANT:

Travis Bewley

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General