RENDERED: MARCH 4, 2022; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1740-MR

KEVIN RAY BURDINE APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT

v. HONORABLE JOHN E. REYNOLDS, JUDGE

ACTION NOS. 18-CR-00802-002 AND 19-CR-01044-002

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

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BEFORE: COMBS, DIXON, AND MAZE, JUDGES.

MAZE, JUDGE: The single question in this appeal is whether the Fayette Circuit 

Court erred in refusing to suppress statements made in the course of a police 

interrogation. Appellant Burdine argues that because the interrogation was 

conducted without properly advising him of his Miranda1rights, any evidence 

1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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obtained in the interview must be suppressed. Finding no error in the circuit 

court’s denial of Burdine’s motion, we affirm its decision in this case.

The facts are straight-forward and undisputed. In the course of a 

police interrogation while in custody on unrelated charges, Burdine confessed to a 

burglary. After Burdine subsequently moved to suppress his confession, the 

Fayette Circuit Court conducted a suppression hearing at which only Lexington 

Metro Police Detective David Fetko testified. Detective Fetko stated that in July 

2018, he went to the Fayette County Detention Center to interview Burdine about a

February 2018 burglary. While gathering preliminary information during the 

initial stages of the interrogation, Detective Fetko told Burdine that he was going 

to give him a little background information about the case and then read him his 

Miranda rights. He did advise Burdine at that time “if you want to talk to me 

great, if you don’t great.” However, Detective Fetko testified at the hearing that 

ten to fifteen minutes into the interview, he realized he had forgotten to read 

Burdine his rights. At that point, Burdine had already confessed to having 

committed the burglary.

Detective Burdine also testified that upon realizing his mistake, he 

excused himself from the interrogation room in order to review the tape to confirm 

whether he had or had not given Burdine the requisite Miranda warnings. The 

audio tape confirmed that Detective Fetko had failed to read Burdine his rights up 
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to that point. Dectective Fetko then re-entered the interrogation room, advised 

Burdine of his Miranda rights, asked Burdine a few questions, and reviewed the 

facts about the burglary. Burdine then admitted to committing the burglary a 

second time.

Detective Fetko admitted at the hearing that Burdine’s first statement 

was more detailed and that Burdine’s second statement was just a shorter version 

of the first. After listening to excerpts from the audio tape of the confession, the 

circuit court heard argument of counsel before denying Burdine’s motion to 

suppress. Burdine thereafter entered a conditional guilty plea reserving for 

appellate review the denial of his motion to suppress his confession to having 

committed the crime charged.

The Supreme Court of Kentucky has clearly laid out the standards by 

which we review a trial court’s ruling on a suppression motion. First, we review 

the trial court’s factual findings for clear error and we are to “deem conclusive the 

trial court’s factual findings if supported by substantial evidence.” Williams v. 

Commonwealth, 364 S.W.3d 65, 68 (Ky. 2011). Next, we review de novo the trial 

court’s application of the law to those facts. Id. Further, the ability to assess the 

credibility of witnesses and to draw reasonable inferences from the testimony at a 

suppression hearing “is vested in the discretion of the trial court.” Pitcock v. 

Commonwealth, 295 S.W.3d 130, 132 (Ky. App. 2009) (citing Commonwealth v. 
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Whitmore, 92 S.W.3d 76, 79 (Ky. 2002)). With these principles in mind, we turn 

to an examination of the arguments pressed for reversal.

Relying upon Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 

L. Ed. 2d 643 (2004), Burdine insists that the circuit court incorrectly applied the 

law in concluding that his second warned statement was admissible. Burdine 

maintains that his second statement was so tainted by the use of a technique 

commonly known as “Reverse Miranda” as to render it inadmissible. Burdine 

describes the technique as one in which an officer obtains a confession without 

reading the suspect the required Miranda warnings and then conducts a second 

interview after giving the Miranda warnings to confirm what the suspect had 

previously admitted to in the first interview. In Seibert, a majority of the United 

States Supreme Court held that the use of the invalid “question-first” technique 

during custodial interrogations necessarily casts doubt on the voluntary nature of 

any subsequent Miranda waivers. Id. at 612-13, 124 S. Ct. at 2610-11. See also 

id. at 619, 124 S. Ct. at 2614 (Kennedy, J., concurring).

However, as the Commonwealth points out, Justice Kennedy 

concurred in result only, stating that post-Miranda statements obtained using the 

“question-first” technique are invalid only where police deliberately employ the 

technique to circumvent the suspect’s Miranda rights. Id. at 621-22, 124 S. Ct. at 

2616 (Kennedy, J., concurring). Further, the Supreme Court of Kentucky has 
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noted in subsequent cases that because Seibert was a plurality decision, its holding 

is confined to the “position taken by those Members who concurred in the 

judgments on the narrowest grounds.” Callihan v. Commonwealth, 142 S.W.3d 

123, 126 (Ky. 2004) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 

990, 993, 51 L. Ed. 2d 260 (1977)).

Thus, in our view, the pivotal inquiry in this appeal is whether the 

confession in this case was obtained by the use of a deliberate police tactic like the 

one condemned in Seibert or was simply the product of a good-faith Miranda

mistake similar to the officer’s oversight in Oregon v. Elstad, 470 U.S. 298, 309, 

105 S. Ct. 1285, 1293, 84 L. Ed. 2d 222 (1985). In Elstad, the Supreme Court 

concluded that: 

It is an unwarranted extension of Miranda to hold that a 

simple failure to administer the warnings, 

unaccompanied by any actual coercion or other 

circumstances calculated to undermine the suspect’s 

ability to exercise his free will, so taints the investigatory 

process that a subsequent voluntary and informed waiver 

is ineffective for some indeterminate period. Though 

Miranda requires that the unwarned admission must be 

suppressed, the admissibility of any subsequent statement 

should turn in these circumstances solely on whether it is 

knowingly and voluntarily made.

470 U.S. at 309, 105 S. Ct. at 1293.

Here, after considering the evidence presented at the hearing in light 

of those opinions, the circuit court entered the following findings and conclusions:
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 The Officer advised Mr. Burdine prior to the initial 

interrogation that he did not have to answer his questions 

and that he would be given his formal Miranda rights. 

However, the Officer failed to give him his Miranda 

rights once the conversation began. There is no evidence 

that the [O]fficer purposefully or deliberately employed 

this tactic. Therefore, as the Supreme Court explained in 

Missouri v. Seibert, the principles of Elstad should be 

applied because the two-step approach was not 

deliberately used. 542 U.S. at 603. The question then is 

whether Mr. Burdine knowingly and voluntarily gave his 

second confession.

As to the nature of Burdine’s second confession, the circuit court 

found no evidence that Detective Fetko coerced Burdine into confessing, nor 

anything to suggest that Detective Fetko employed improper tactics in making 

Burdine agree to the statements he made in the first non-Mirandized confession. 

Thus, the circuit court found there was no reason to believe that Burdine’s second 

confession had not been voluntarily and knowingly given. Again citing Elstad, the 

circuit court concluded that Burdine had simply “responded to unwarned yet 

uncoercive questioning” and thus he was “not thereby disabled from waiving his 

rights and confessing after he [had] been given the requisite Miranda warnings.” 

We reiterate the rationale underpinning Elstad: 

We must conclude that, absent deliberately coercive or 

improper tactics in obtaining the initial statement, the 

mere fact that a suspect has made an unwarned admission 

does not warrant a presumption of compulsion. A 

subsequent administration of Miranda warnings to a 

suspect who has given a voluntary but unwarned 

statement ordinarily should suffice to remove the 
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conditions that precluded admission of the earlier 

statement. In such circumstances, the finder of fact 

may reasonably conclude that the suspect made a 

rational and intelligent choice whether to waive or 

invoke his rights.

470 U.S. at 314, 105 S. Ct. at 1296 (emphasis added).

Burdine nevertheless argues that Detective Fetko’s failure to 

undertake “curative measures” before obtaining a second statement undermines 

any finding that the second statement could be voluntary. Elstad specifically 

dispels that contention: 

The standard Miranda warnings explicitly inform the 

suspect of his right to consult a lawyer before speaking. 

Police officers are ill-equipped to pinch-hit for counsel, 

construing the murky and difficult questions of when 

“custody” begins or whether a given unwarned statement 

will ultimately be held admissible. 

470 U.S. at 316, 105 S. Ct. at 1297. Thus, Burdine’s suggestion that Officer Fetko 

should have undertaken curative measures in addition to giving him Miranda

warnings is unavailing.

Returning to Callihan, we emphasize that our Supreme Court 

interpreted Seibert as requiring exclusion of post-warning statements only “where 

police deliberately employ the technique to circumvent the suspect’s Miranda 

rights” and stated that such a determination cannot be made “absent an evidentiary 

hearing” addressing that specific issue. 142 S.W.3d at 125-26 (emphasis added). 

In the current case, after hearing the evidence and argument of counsel, the circuit 
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court found that Detective Fetko’s failure to properly Mirandize Burdine was the 

result of an honest mistake. We find nothing in the record suggesting that 

Detective Fetko intentionally used Burdine’s first statement in an attempt to 

overcome Burdine’s will in giving the second post-Miranda statement. Burdine 

does not point to any evidence suggesting that Detective Fetko deliberately 

employed the “question-first” technique to circumvent his Miranda rights.

While Burdine contends that the circumstances surrounding Detective 

Fetko’s questioning were inherently coercive, he does not point to any evidence 

which would cast doubt on the voluntariness of his post-Miranda statements. 

Indeed, nothing in this record allows us to conclude that the circuit court’s findings 

lack the support of substantial evidence. It was well within the discretion of the 

circuit court to assess the credibility of witnesses and to draw reasonable 

inferences from the testimony at the suppression hearing. On the undisputed facts

of this case, we concur in the circuit court’s assessment and hold that it did not

clearly err in denying Burdine’s motion to suppress his post-Miranda statements.

Accordingly, we affirm the decision of the Fayette Circuit Court.

ALL CONCUR. 
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BRIEF FOR APPELLANT:

Noel Caldwell

Jerry L. Wright

Lexington, Kentucky

ORAL ARGUMENT FOR 

APPELLANT:

Jerry L. Wright

Lexington, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General

Frankfort, Kentucky

ORAL ARGUMENT FOR 

APPELLEE:

Christina L. Romano

Assistant Attorney General

Frankfort, Kentucky