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NOT TO BE PUBLISHED OPINION
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RENDERED: SEPTEMBER 24, 2015
uptrittr Gurf of 7
2014-SC-000140-MR
* NOT TO BE PUBLISHED
Li Li 1-1
AARON RASHAD CAMPBELL APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
V. HONORABLE PAMELA GOODWINE, JUDGE
NO. 10-CR-01585-001
COMMONWEALTH OF KENTUCKY APPELLEE
AND 2014-SC-000360-TG
AARON RASHAD CAMPBELL APPELLANT
ON TRANSFER FROM COURT OF APPEALS
V CASE NO. 2014-CA-000482-MR
FAYETTE CIRCUIT COURT NO. 11-CR-00639
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Aaron Rashad Campbell conditionally pled guilty in two separate but
related robbery prosecutions.' Both prosecutions were for first-degree robbery
of the same victim, separated in time by a number of months. Under the terms
of his guilty plea, Campbell now challenges the trial court's denial of his motion
1 10-CR-01585-001: the "2010 robbery"; and 11-CR-00 639: the "2009
robbery."
to suppress his confessions in both prosecutions. 2 Campbell's sole argument
is that repeated implicit promises of leniency during interrogation overbore his
will, essentially coercing his confession. We disagree and find Campbell was
neither promised leniency nor was his will overborne by police conduct.
Campbell's convictions and related sentences, therefore, are affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND.
In August 2009, intruders entered David Norris's home, tied him up, hit
him in the head, and robbed him of $70,000. A police investigation failed to
produce any suspects for over a year.
Norris was robbed at home again in October 2010. This time, two men
entered his home, tied him up, and made off with his credit card. Police began
another investigation, aided in this instance by surveillance videos of
individuals using credit cards at local stores and by Crimestoppers. Within a
short time, Michael Washington emerged as a suspect.
Washington eventually confessed to the crime and implicated Campbell,
his cousin, as the other participant. After arresting Campbell, police
questioned him about the robbery multiple times. Ultimately, Campbell
confessed to being involved. In light of the information gained from Campbell's
statement, police became suspicious that Washington and Campbell were
2 Given the length of Campbell's sentence for the 2010 robbery, he appeals as a
matter of right. See Ky.Const. § 110(2)(b). Campbell's appeal for the 2009 robbery
does not meet the requirements of § 110(2)(b) but was consolidated with the
2010 robbery appeal due to the extent of overlapping facts and arguments.
2
involved in the earlier robbery of Norris's home. Forensic evidence verified this
suspicion. Campbell eventually confessed to the second robbery, as well.
Campbell was separately indicted for each robbery of Norris's home.
Before trial, Campbell filed a motion to suppress both of his confessions on
grounds that police made promises of leniency and coerced him into
confessing. The trial court denied Campbell's motions following a hearing. As
a result, Campbell entered a conditional guilty plea, reserving the right to
appeal the trial court's decision. For the 2010 robbery, Campbell pleaded
guilty to second-degree robbery and was sentenced to ten years' imprisonment.
And for the 2009 robbery, Campbell pleaded guilty to first-degree robbery and
being a second-degree Persistent Felony Offender (PFO 2) and, accordingly, was
sentenced to twenty years' imprisonment. Campbell's sentences were ordered
to run consecutively. The only issue now on appeal for our review is the trial
court's denial of Campbell's suppression motion.
II. ANALYSIS.
Appellate review of trial court rulings on motions to suppress is two-
pronged: (1) Any factual findings by the trial court are conclusive as long as
they are supported by substantial evidence; and (2) The application of the law
to those facts, however, is reviewed de novo. 3
The fundamental concern for affording a defendant due process
mandates that confessions or other statements procured through coercive
means be excluded. Generally speaking, a defendant's speech is tainted with
3 See Ornelas v. United States, 517 U.S. 690, 691 (1996).
3
coercion when his "will has been overborne and his capacity for self-
determination critically impaired . . . ." 4 A statement is admissible, in other
words, when that statement was made voluntarily, i.e., "the product of an
essentially free and unconstrained choice by its maker". 5 When reviewing an
allegedly coerced confession, we attempt to answer three points: "(1) whether
the police activity was 'objectively coercive'; (2) whether the coercion overbore
the will of the defendant; and (3) whether the defendant showed that the
coercive police activity was the 'crucial motivating factor' behind the
defendant's confession." 6 The totality of the circumstances, including "the
characteristics of the accused and the details of the interrogation11" 7 aid us in
this analysis.
The coercion Campbell alleges today is not of the physical variety.
Campbell was not mistreated, abused, denied food or rest, or mishandled in
any way. Of course, "coercion can be mental as well as physical . . . ." 8 After
all, the "blood of the accusedis not the only hallmark of an unconstitutional
inquisition."9
It is acceptable for police to use a certain degree of psychological tactics
in obtaining a suspect's confession. Various courts, including the United
4 Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973).
5 Bailey v. Commonwealth, 194 S.W.3d 296, 300 (Ky. 2006) (quoting
Schneckloth, 412 U.S. at 225).
6 Id. at 301 (quoting Henson v. Commonwealth, 20 S.W.3d 466, 469 (Ky.
1999)).
7 Schneckloth, 412 U.S. at 226.
8 Blackburn v. Alabama, 361 U.S. 199, 206 (1960).
9 Id.
States Supreme Court, have allowed police to "play on the suspect's
sympathies or explain that honesty might be the best policy for a criminal who
hopes for leniency from the state[.]" 10 This Court has, for example, permitted
police to engage in strategic deception by misrepresenting the strength of the
evidence against the suspect. 11 Promises, whether of leniency or otherwise,
bring about somewhat special concerns with regard to a voluntary confession.
That said, courts are in agreement that police "may validly make some
representations to a defendant or may discuss cooperation without rendering
the resulting confession involuntary. " 12 More specifically, courts have
permitted police to "initiate conversations on cooperation, . . . promise to make
a defendant's cooperation known to the prosecutor, and . . . even be able to
make and breach certain promises without rendering a resulting confession
involuntary." 13
Campbell alleges that his mental will was overborne as a result of the
police's repeated promises of leniency in exchange for his confession and
threats of increased punishment if he did not confess. Campbell also alleges
he was coerced because the police threatened his girlfriend. We find
Campbell's arguments meritless.
lo Miller v. Fenton, 796 F.2d 598, 605 (3d Cir. 1986) (compiling cases).
11 Springer v. Commonwealth, 998 S.W.2d 439 (Ky. 1999)•.
12 United States v. Shears, 762 F.2d 397, 401-02 (4th Cir. 1985) (compiling
cases).
13 Id. (compiling cases).
5
Campbell's interrogations and related discussions with police were calm
affairs with neither Campbell nor police ever becoming agitated. The
interrogations were conducted in a casual manner with routine breaks.
Campbell was permitted to smoke cigarettes, drink sodas, and contact family
members. In fact, at one point, Campbell thanked police for being so kind to
him.
Before reviewing the respective interrogations, it is important to mention
that Campbell was given Miranda" warnings at the beginning of both
interrogations and acknowledged he understood those rights. The common
Miranda recitation warns the defendant that anything he says can and will be
used against him. As a result, Campbell entered the interrogation with the
knowledge that if he confessed to the robberies, he could be prosecuted. In
order for Campbell's confessions to be rendered involuntary, the friendly
demeanor and supposed promises by police would have to overcome
Campbell's belief that the Commonwealth intended to prosecute him and
sentence him to jail, if convicted.
Police first met with Campbell in November 2010 following his arrest.
The focus of this interrogation was the 2010 robbery. During this
interrogation, the police continually emphasized that they were not talking with
Campbell to determine what happened; rather, they wanted to know why
Campbell had robbed Norris. Consistent with this mission, police requested
Campbell unburden himself and try to provide context to the robberies
14 Miranda v. Arizona, 384 U.S. 436 (1966).
6
because, on their face, they looked bad. The police acknowledged that
prosecutors often ask questions such as: "What was he like?"; "Was he
remorseful?"; "Was he honest?"; or "Did he seem like he cared?" Police
reminded Campbell they needed him to be honest with them about why the
robbery occurred so they could answer those questions. Throughout the
interrogation, police reminded Campbell that his best bargaining chip was his
honesty and being completely honest would look better than lying.
Campbell expressed concern for Michael and sought a deal for him
because Campbell felt as if Michael's participation was his fault. Police
reminded Campbell that Michael had already provided a statement and his
statement aligned neatly with the forensic evidence. Police then counseled that
if his statement differed, he or Michael must be lying and that would mean no
deal. The overall tone of the interrogations was far short of coercion.
At some point before Campbell's pretrial hearing for the 2010 robberies,
he cut his ankle monitor and fled. Campbell was eventually apprehended by
U. S. Marshals in April 2011 at his girlfriend's house. 15 Following his arrest,
15 Campbell was arrested in his girlfriend's apartment while she was home.
After he was handcuffed, the U. S. Marshals took Campbell's girlfriend into a nearby
bedroom, shut the door, and proceeded to have a conversation with her regarding
Campbell and her culpability for harboring a fugitive. The evidence is unclear whether
Campbell heard this conversation. He argues on appeal that the police were
objectively coercive in taking his girlfriend behind closed doors and "threatening" her
with prosecution if she did not disclose information. This argument is baseless. There
was no threat—Campbell's girlfriend certainly could have been prosecuted for
harboring a fugitive. After all, Campbell was arrested in her home. Regardless,
Campbell is unable to present evidence that he heard the conversation or that it had
any impact on his decision to confess to police.
The same can be said for Campbell's argument regarding his nephew's
mother. Apparently, police were quite rude to her when they arrived at her home
7
Campbell requested to talk with the detectives he had spoken with previously.
This time, Campbell wished to speak about the 2009 robbery. The following
exchange, in our view, dispels any notion that the interrogation was conducted
in an objectively coercive manner:
Campbell: Let me ask you a question. If I tell you, how are
you going to be able to help me out?
Detective: I'll be honest with you, I can't make you any
promises saying I'll get you this . . . . I don't
mind, the way I'm working is if you're . . . .
Campbell: I'm not worried about calling a lawyer. I'm not
worried about that . . . .
Detective: The way I work is if you're totally honest with me
and you lay it all out on the table and you give
me everything, I have no problem going to bat
for you. You're a young guy . . . you're a nice
guy, Aaron and you've made some mistakes.
And that's all they are—mistakes. . . . You're
not a bad guy. You made a mistake.
Campbell: I'm not gonna bullshit you. Only thing I'm
afraid of is, say I tell you and nothing happens
for me.
This is how the second interrogation began. Campbell set the tone early that
he wanted something in return for any potential confession. No promises were
made to him. In fact, the police explicitly acknowledged no promises could be
made. We fail to see any coercion with regard to Campbell's interrogation
relating to the 2009 robbery.
looking for Campbell and were quick to remind her that she could be prosecuted for
harboring a fugitive if she was not truthful about his whereabouts. Campbell was not
in the home at this point, so we are unsure how this interaction had any bearing on
Campbell's decision to confess.
8
At what point promises of leniency, implied or explicit, reach coercion is
an interesting question—a question the Supreme Court has offered somewhat
mixed 16 guidance on over time. It is a question, however, that we need not
answer to find Campbell voluntarily decided to confess. Police offered to assist
Campbell, do everything in their power, or talk to the prosecutor on his behalf;
but, for the majority of his discussions with police, Campbell was in control.
Campbell actively bargained with police, seeking leniency for his cousin, help
with lowering his bail, and participation in the home incarceration program. 17
Havingformedcinvsatowhplcebufr
punishment hardly seems like the conduct of an individual whose will has been
overborne.
16 See Bram v. United States, 168 U.S. 532, 557-58 (1897) (holding promises of
leniency or police comments intended to instill hope of leniency constitute coercion:
"In this court the general rule that the confession must be free and voluntary—that is,
not produced by inducements engendering either hope or fear—is settled by the
authorities referred to at the outset."); Hutto v. Ross, 429 U.S. 28, 30 (1976) (applying
Bram in plea bargain context); but see Arizona v. Fulminate, 499 U.S. 279, 285 (1991)
(distinguishing Bram because it "does not state the standard for determining the
voluntariness of a confession . . . .")
17 These questions indicate Campbell's knowledge and experience with the
criminal justice system. The trial court took this into consideration when denying
Campbell's motion to suppress. On appeal, Campbell mentions that this was
improper. But the citation provided by Campbell provides little support for his
position. To the contrary, it seems the case law supports the trial court's position.
After all, the totality of the circumstances includes a review of the accused, as well as
the various aspects of interrogation. Various courts have explicitly acknowledged—
some even stressed the importance of—the role a defendant's prior experience plays in
assessing whether a confession was voluntary. See, e.g., Stein v. New York, 346 U.S.
156, 185 (1953) ("The limits [of permissible questioning tactics] in any case depend
upon a weighing of the circumstances of pressure against the power of resistance of
the person confessing. What would be overpowering to the weak of will or mind might
be utterly ineffective against an experienced criminal.") overruled on other grounds by
Jackson v. Denno, 378 U.S. 368 (1964); United States v. Oglesby, 764 F.2d 1273, 1278
(7th Cir. 1985).
9
Receiving something in return for a confession was not a concept injected
into the situation by police, at least not solely. And police stopped short of ever
truly promising Campbell anything, outside of simply offering to talk to the
prosecutor and present Campbell's side of the situation. There was no
guarantee of leniency, and we are unconvinced Campbell believed leniency was
forthcoming. In any event, Campbell fails to offer any indication that his hopes
of leniency served as a "crucial motivating factor" 18 in his decision to confess.
While we can never be certain of a defendant's subjective motivations to
confess, a review of the evidence indicates it is more plausible that Campbell
confessed because he wanted to protect his cousin and he was remorseful for
the troubles he was putting his family through. In the end, it may be fair to
say Campbell's confession was made in the hope of leniency; but we cannot say
from our review of this record that Campbell confessed in response to any
promise of leniency. 19
Police comments to Campbell most likely served as an impetus for him to
come clean about the robberies. But we simply are unable to hold that the
police's "non-answers," as Campbell labels them, exerted enough psychological
pressure to overcome the "will of a mature, experienced man, who was
suffering from no mental or physical illness" 20 and was not interrogated for an
unreasonable time or in an unreasonable manner.
18 Bailey, 194 S.W.3d at 301.
19 Miller, 796 F.2d at 610.
20 Id. at 613.
10
III. CONCLUSION.
Because Campbell's will was not overborne during his various
discussions with police, the trial court did not err in denying Campbell's
motion to suppress. We affirm the judgment.
All sitting. All concur.
11
COUNSEL FOR APPELLANT:
Julia Karol Pearson
Kathleen Kallaher Schmidt
Assistant Public Advocates
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Heather Michelle Fryman
Assistant Attorney General
12