NOT TO BE PUBLISHED
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. ." PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITYIN ANY OTHER
CASE INANY COURT OF THIS STA TE.
RENDERED : AUGUST 24, 2006
NOT TO BE PUBLISHED
,*UyrrMr Courf of 'Gufurh,
2005-SC-0760-MR
EMOISHA L. DUNCAN APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA ISAAC, JUDGE
2004-CR-0245-001 & 2005-C R-0663
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
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