# IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “ NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D) , THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.RENDERED: AUGUST 24, 2023 NOT TO BE PUBLISHED 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 t he 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 fel on 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 t heir next

- door neighbors. Cody was a nother neighbor

. On July 9, 2019, the day before Judy was killed, Judy told Aileen that she was leaving Stalcup agai n . 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, “bu t 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 . Wh en 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. Se rgeant Ray observed that the victim was shot under her right arm a nd detected a faint pulse

. Stal cup 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 s hot herself and he didn’t know where the gun was. Pursuant to a warrant, the home was3

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 self

inflicted 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

. Beca use 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 Miranda 2 right s , 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 afte r 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

- incriminat ion 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 , St alcup continued the interview for another hour before requesting an attorney. 3 The trial court suppressed
incrimina ting st atements 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 l eading 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 descrip tion of his positioning on the couch with the gun. Detective Coffman also testified at tr ial

. 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 a t 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 possess ion 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

. T he trial court imposed a prison sentence totaling forty

three years, thirty

- five years for committing mu rder and a consecutive eight
year s 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 p rohibited by Missouri v. Seibert. 5 When reviewing on appeal a trial co urt’s order denying suppression of evidence, the factual findings are review ed for clear error, meaning that t he

4 The jury was also instructed on first

- degree manslaughter, second

- degree manslaughter, reckless homicide , and voluntary intoxication.

5 5 42 U.S. 600, 617 (2004).6

t r ial 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 conclusion s 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, t he 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 off ice.” 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 fro m 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 w ent 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 evidence 8 a nd we conclude upon review that Detective Norman’s testimony during the suppression heading, the recorded interview, and officer body camera video 9 is substantial evidence supporting the findings of facts, we turn to Stalcup’s argument that the trial cour t erred as

a matter of law in concluding that he was not in custody until he was read the Miranda warning.
T he 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 fo r 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’ actio ns 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 tri al 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, con sidered this factor when determining whether Stalcup was in custody at the time of the interrogation

. T he trial court also concluded that the interaction which followed between Stalcup and the officer, the officer apologizing to Stalcup and shaking his ha n d, tempered any semblance of custody from the previous interaction

. Stalcup argues , however, that bas ed upon the officers’ actions, he was always in custody for Miranda purposes . I t 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 “ M iranda warnings are required only where there has been

. . . a restriction on the freedom of an individual as to render him in custody

. ” 12
Cust odial 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 cit es Smith v. Commonwealth 14 and H owes 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 state ment 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 th e surrounding circumstances, a reasonable person would have believed he or she was free to leave , ” 17 and p ertinently, that factors which suggest a seizure has occurred and that a suspect is in custody include the threatening presence of several officers;
t he 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, 5 5 4 (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 forc e 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 l i st s 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 th at courts must examine “all the circumstances surrounding the interrogation

. ” 21 I n contrast to Stalcup’s framing, “ exceptions ” are not part of the analysis. Indeed, within its totality of the circumstances analys is , 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 i d

. at 358.

20 Id . at 509.

21 Id

. 22 Id . at 515

.11

considered t he 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

. F urthermore, 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 i t 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 co nfrontational. 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 i nterview and leave

. As noted above, the second part of Stalcup ’s argument is that his statements should have be en suppressed because the detectives used the12

“question first” technique to circumvent Miranda , a technique which S eibert 23 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

- Mirand a] 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 firs t” technique was invalid and the post

- Miranda repeated statement s w ere not admissible. 27 Pertinently, in contrast to this case , all of the S eibert 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. 6 00

. 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 ha

ve a viable argument for suppression of his statements under S ei bert

. 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 t he 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 , S ei bert is inapposite to S talcup’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 84 9

. 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