NOT TO BE PUBLISHED

THIS OPINIONIS DESIGNATED "NOT TO BE

PUBLISHED. ." PURSUANT TO THE RULES OF

CIVIL PROCEDURE PROMULGATED BYTHE

SUPREME COURT, CR 76.28 (4) (c), THIS OPINION

IS NOTTO BE PUBLISHED AND SHALL NOTBE

CITED OR USEDASAUTHORITYINANYOTHER

CASE INANY COURT OF THIS STA TE.
RENDERED: AUGUST 24, 2006

NOT TO BE PUBLISHED

,*UyrrMr Courf of 'Gufurh,

2005-SC-0760-MR

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE SHEILA ISAAC, JUDGE

2004-CR-0245-001 & 2005-C R-0663

MEMORANDUM OPINION OF THE COURT

AFFIRMING

EMOISHA L. DUNCAN APPELLANT

COMMONWEALTH OF KENTUCKY APPELLEE

This appeal is from a conditional guilty plea entered by Duncan to one count of

second degree robbery, one count of first degree wanton endangerment, one count of

possession of a handgun by a convicted felon, one count of first degree fleeing or

evading police and of being a persistent felony offender in the first degree. He was

sentenced to 27 years in the penitentiary .

The single issue on appeal is whether the trial judge improperly refused to

suppress Duncan's admissions in a statement to the police.

Duncan was in custody on an unrelated charge as was the co-defendant in this

case, Johnson . Duncan had appointed counsel representing him in regards to the
unrelated' charge. Johnson was interviewed by the police and implicated Duncan in the

matter that resulted in the current charges.

A detective then went to speak to Duncan. Duncan was advised of his Miranda

rights . Duncan testified at the suppression hearing that he immediately invoked his

right to silence and did not want to talk to the detective . The testimony from the

detective was that Duncan stated he first wanted to talk to Johnson but that then he

would talk to the detective about the robbery in question.

The detective set up a brief meeting between Duncan and Johnson . Duncan

was never told that Johnson had previously implicated him in the robbery. Duncan

testified that after the meeting, he immediately asked to see his lawyer. The detective

testified that he again advised Duncan of his Miranda rights and that Duncan never

requested an attorney. After the meeting with Johnson, Duncan discussed the robbery

with the detective and admitted to the crime. The interview was brief and started at

2:40 p.m .

Coincidentally, Duncan's attorney for the other pending charges signed into the

jail at 2:44 p.m . to see Duncan . He was informed that Duncan had been taken to the

police headquarters. The attorney called the police and informed them they were not to

speak to Duncan . By the time the message was given to the detective, the interview

had concluded and Duncan had already confessed.

The trial judge heard the testimony and overruled the motion to suppress . He

found that Duncan had been provided his Miranda warnings, the police had no

obligation to contact Duncan's attorney because he had been appointed on unrelated

charges and that it was not improper for the police to remove Duncan from the jail and

bring him to the police headquarters for the interview.
Duncan entered a conditional guilty plea to the charges and was granted the

right to appeal the failure of the trial judge to suppress the statement of confession.

This appeal followed . After a complete review of the issues and evidence, we do not

find any error and affirm the decision of the trial judge and the convictions and

sentence.

1 . Sixth Amendment Right To Counsel

Duncan argues that because he was represented on other charges, his right to

counsel attached to any new charges. He was not charged with the matters involved in

the current case until after the confession. The right to counsel cannot be invoked once

and relied on for any and all future prosecutions. McNeil v. Wisconsin , 501 U.S. 171,

111 S .Ct. 2204, 115 L.Ed.2d 158 (1991). The right does not attach until a prosecution

is started. See McNeil , supra. Duncan's argument is without merit. The trial judge

properly denied the motion to suppress the statement by Duncan.

I . Waiver Of Fifth Amendment Rights

Duncan was provided the required Miranda warnings twice and before any

interrogation began. There is nothing in the record to indicate his waiver was not

voluntary, knowing and intelligently made . See Miranda v. Arizona, 384 U .S . 436, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1966) . The trial judge heard the conflicting testimony and

reached a decision based on the evidence. We will not overturn that decision absent

clear error. See Ornelas v. United States, 517 U .S. 690, 116 S.Ct 1657, 134 L.Ed.2d

911 (1996) . There was no error.

Ill . Fourteenth Amendment Due Process Right

There was nothing in the record to indicate Duncan's confession was the result

of coercive police activity. Most of the interview was tape recorded. Duncan even now

3
argues that the only coercion was the fact that he refused to cooperate with the

detective until he was granted the opportunity to talk to the co-defendant. The fact that

the detective fulfilled this condition did not make the confession coerced. There was no

indication of any violence or deliberate means calculated to break Duncan's will and

force a confession . See Mills v. Commonwealth , 996 S .W.2d 473 (Ky. 1999). There

was no error.

IV. Appointment Of Counsel On Unrelated Charges And Police Questioning

The police did not act improperly when they questioned Duncan about the robbery

and related charges. The right to counsel is charge specific and had not attached . See

McNeil, supra. The questioning by police regarding the uncharged offenses was not

improper. See Lineham v. Commonwealth , 878 S .W.2d 8 (1994). Evidence collected

from a defendant's statement may be used against that defendant even if counsel has

been appointed for another unrelated crime . There was no error. There was no valid

reason to suppress the statements.

The trial judge did not err when she refused to suppress the inculpatory

statements made by Duncan to police. Duncan was not denied any state or federal

right to due process.

The judgment and sentence is affirmed in all aspects.

All concur.
COUNSEL FOR APPELLANT:

Shannon Dupree

Assistant Public Advocate

Department of Public Advocacy

100 Fair Oaks Lane - Suite 301

Frankfort, KY 40601

COUNSEL FOR APPELLEE:

Gregory D. Stumbo

Attorney General

Courtney J . Hightower

Assistant Attorney General

Criminal Appellate Division

1024 Capital Center Drive

Frankfort, KY 40601