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HomeMy WebLinkAbout98-1852 criminalCOMMONWEALTH Vo GLEN A. LIGHTNER, III IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 98-1852 CRIMINAL TERM IN RE: MOTION TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J., March 5, 1999:-- Defendant, Glen A. Lightner, III, is charged with statutory sexual assault,1 indecent assault,2 corruption of a minor,3 involuntary deviate sexual intercourse,4 aggravated indecent assault,5 and furnishing an alcoholic beverage to a minor? He filed a motion to suppress evidence upon which a hearing was conducted on February 19, 1999. We find the following facts. Detective Thomas Kibler, of the North Middleton Township Police Department received a complaint that a fifteen-year-old girl was the victim of illegal sexual conduct by defendant, age 51. On September 26, 1998, while at the North Middleton Township Police Station, Detective Kibler listened to a telephone conversation on a consensual interception between the victim and defendant. A few minutes after the 1. 18 Pa.C.S. § 3122.1. 2. 18 Pa.C.S. § 3126(a)(8). 3. 18 Pa.C.S. § 6301. 4. 18 Pa.C.S. § 3123(a)(7). 5. 18 Pa.C.S. § 3125(a)(8). 6. 18 Pa.C.S. § 6310.1. 98-1852 CRIMINAL TERM call was completed, the phone rang. Detective Kibler picked up the phone, heard heavy breathing and then the person hung up. The detective knew defendant and he thought defendant had dialed "Star 69" to determine from where the victim had called. Detective Kibler then called defendant. He told him of the complaint he was investigating, and said that if he chose he would like him to come to the police station so that he could hear his side of the story. Defendant drove to the police station arriving approximately ten minutes later. Defendant asked Detective Kibler "What was going on." The detective told him that he just wanted to get his side of the story, that he was not under arrest, and that he was free to leave any time. Defendant sat down and told the detective the circumstances whereby he had met the alleged victim. Defendant became nervous. He asked to smoke and the detective told him that there was no smoking in the , police station. Defendant asked to go outside and smoke, and he and the detective went outside to continue their conversation. After defendant finished smoking, they went inside the police station at which time defendant told the detective that he had been intimate with the victim. Detective Kibler asked defendant for a statement and defendant said "No." The detective said "Okay." He reminded defendant that he was not under arrest. Defendant then immediately said that he was not stupid and he would make a statement which the detective could record. Defendant then gave the officer a recorded statement. When they were finished, defendant asked the officer how long he could go to jail. Detective Kibler told him that the "DA had to approve -2- 98-1852 CRIMINAL TERM charges and the whole matter would be up to a jury and a judge." On September 28, 1998, after Detective Kibler had discussed the case with an assistant district attorney, he called defendant and asked him if he would come to the police department for a more detailed, voluntary statement. Defendant again drove to the police department and when he arrived Detective Kibler told him (1) he was not under arrest, (2) he was free to go at any time, and (3) that if he wanted to continue it was to help himself knowing that no promises had been made to him. The detective then advised defendant of his Miranda rights which defendant waived.7 Detective Kibler asked defendant a series of prepared typewritten questions and typed defendant's answers to each question. Detective Kibler then read every question and answer to defendant. At the end, defendant was asked "Have any promises been made to you." Defendant answered "1 wish, no sir." Defendant then signed the document. Defendant left the police station but when he got to his car he yelled that he had ffucked up" and made a mistake, and didn't any of the good in his life count. He said that he was going to swallow his "38." Detective Kibler got him calmed down and defendant left. Detective Kibler filed the criminal charges against defendant on October 1, 1998. He called defendant who met him at the District Justice office. Defendant told Detective Kibler that he did not want to waste the taxpayers money and would represent himself. Detective Kibler told defendant that he would go to bat for him. 7. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 LEd.2d 694 (1966). -3- 98-1852 CRIMINAL TERM Defendant was arraigned and made bail. Later that day defendant called Detective Kibler and asked him to met him at the District Attorney's office. Defendant went to the District Attorney's office where he made another statement to Detective Kibler and an assistant district attorney. Defendant maintains that all of the statements that he made to Detective Kibler on September 26 and September 28, 1998, should be suppressed because they were impermissibly induced by Detective Kibler. He'seeks to suppress the statements he made to Detective Kibler and an assistant district attorney after he was arraigned on the basis that they emanated from the fruit of the poison tree. Wong Song v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L. Ed.2d 441, (1963). In Commonwealth v. Gibbs, 520 Pa. 151 (1989), a state trooper was questioned with respect to the administration of Miranda warnings to the defendant: Q. O.K. Can you continue? Just tell us what happened when you first started the interview. A. O.K. I read the Miranda warnings to him. He indicated that he understood. At that particular point he then asked or he made the statement, 'Maybe I should talk to a lawyer. What good would it do me to tell you?' I responded by telling him, '1 really don't know what good it would do. The only thing is I would tell the District Attorney you cooperated for whatever good that would be, but I would have no idea whether it would help your case or not.' (Emphasis added.) Q. O.K. Continue. A. O.K. Then Corporal Hague also told him that this was strictly up to him, and that he was there, he knew what happened, and he was -4- 98-1852 CRIMINAL TERM the only one that was not family, and he had to make the decision himself on what he should do. All right. And referring to the paper, he signed the waiver at 12:05. The Supreme Court of Pennsylvania stated: Our decision narrowly focuses on the issue of whether the Trooper's response that 'the only thing is I would tell the District Attorney you cooperated for whatever good that would be' constituted an impermissible misleading inducement to the Appellant not to pursue further his ambiguous and equivocal inquiry regarding the presence of an attorney. (Emphasis added.) The Court held: [t]hat the statement by the authorities to Griggs was an impermissible inducement and thereby tainted his admissions. By conveying the distinct impression that the district attorney would be told of his cooperation in giving a confession on the spot, there occurred an inescapable inducement which cannot be condoned under the law. For while we recognize that the police have a legitimate responsibility to conduct investigations, including interrogations, criminal suspects have a constitutional right to make up their own minds as to whether they want the Miranda protections. Promises of benefits or special considerations, however benign in intent, comprise the sort of persuasion and trickery which easily can mislead suspects into giving confessions. The process of rendering Miranda warnings should proceed freely without any intruding frustration by the police. Only in that fashion can we trust the validity of subsequent admissions, for if the initial employment of Miranda is exploited illegally, succeeding inculpatory declarations are compromised. Misleading statements and promises by the police choke off the legal process at the very moment which Miranda was designed to protect. (Emphasis added). In Commonwealth v. Purnell, 412 Pa. Super. 462 (1992), allocatur denied 533 Pa. 609 (1992), the defendant was arrested on a drug charge and waived his Miranda rights. At some point during the questioning process the defendant asked a police officer a question dealing with bail, and the officer told him that he would -5- 98-1852 CRIMINAL TERM inform the judge that he was cooperative. The trial court suppressed defendant's statements on the basis that the officer's promise to bring appellee's cooperation to the attention of a judge impermissibly induced his statements, thus, rendering them involuntary. The Superior Court of Pennsylvania reversed, stating: The record is clear that Officer DeShullo's comment was not a promise of benefits or special consideration designed to mislead or induce appellee into confessing. This was not an inducement since no causal connection between the promise and the confession has been shown or could be inferred from the record. Officer DeShullo never told appellee that in exchange for his confession, he would inform the magistrate of his cooperation. Rather, in response to appellee's questions about securing bail, the officer explained the arraignment procedure and simply stated he 'would tell the judge that [appellee was] cooperative.' Significantly, the record is clear that appellee had already given his statement to Officer DeShullo prior to his questioning about the possibility of bail. Therefore, the officer's promise to inform the magistrate of appellee's cooperation clearly could not have induced appellee's statement. Cf., U.S.v. Fraction, infra, 795 F.2d 12, 15 (3d Cir., 1986) (Third Circuit found no causal connection between FBI agent's promise to bring cooperation to the authorities' attention and suspect's decision to confess). The Court distinguished Commonwealth v. Gibbs, supra, as follows: In Gibbs, our Supreme Court stated, 'In our decision today, we decide only that the authorities are not permitted to employ inducements which impair in any way a suspect's right to his own unfettered evaluation of the need for legal counsel.' Gibbs, 520 Pa. at _, 553 A.2d at 411. The lower court appears to have felt that Officer DeShullo's statement was the same type of impermissible inducement as that found in Gibbs, supra. However, Gibbs, supra, is inapposite presently as it relates only to those situations when the police prompt an admission by suggesting a benefit if the suspect foregoes [sic] his request for representation. Instantly, appellee never requested counsel, and the officer's promise to tell the magistrate that appellee was cooperative did not impermissibly · interfere with appellee's right to request legal representation. In fact, the promise did not induce appellant's cooperation. 98-1852 CRIMINAL TERM On September 26, 1998, defendant voluntarily appeared at the North Middleton Police Station, and told his side of the story to Detective Kibler. He was not in custody. No promises were made to defendant by Detective Kibler to induce his incriminating statements. After defendant made those statements, the detective told him that the "DA had to approve charges and the whole matter would be up to a jury and a judge." That statement did not prompt the incriminatory statements that defendant had already made, and it was not an impermissible inducement that tainted the subsequent statements defendant made on later occasions to law enforcement authorities. Commonwealth v. Purnell, supra, When, at the request of Detective Kibler, defendant again voluntarily came to the police station on September 28, 1998, to give a more detailed statement, Detective Kibler told him that "If he wanted to continue it was to help himself knowing that no promises had been made to him." No promises were in fact made to defendant which was confirmed by him after he gave a detailed incriminatory statement, when, in response to being asked "Have any promises been made to you," defendant answered "1 wish, no sir." The remaining issue is whether Detective Kibler's telling defendant before he made his incriminatory statement that "If he wanted to continue it was to help himself..." tainted the subsequent incriminatory statements. Unlike the facts in Commonwealth v. Gibbs, supra, in which the defendant said "Maybe I should talk to a lawyer. What good would it do me to tell you," and the state trooper then gave him "the distinct impression that the district attorney would be -7- 98-1852 CRIMINAL TERM told of his cooperation in giving a confession on the spot," defendant herein voluntarily came to the police station to talk to Detective Kibler, he was not in custody, he had previously made incriminatory statements to the detective, and he waived his Miranda rights without ever suggesting that he might want to talk to a lawyer. Notwithstanding that Detective Kibler read defendant his Miranda rights and obtained a waiver, defendant was told he was not under arrest and was free to go any time. Defendant, in fact, left after he gave the statement. The facts that gave rise to the suppression of the statements of the defendant in Gibbs are not present in this case. Defendant agreed to give a written statement to Detective Kibler as a follow-up of the verbal statements he had previously given to him. Detective Kibler never promised defendant that he would not be charged if he did not give another statement. Detective Kibler's telling defendant that "If he wanted to continue it was to help himself" did not induce defendant's statements and therefore, they should not be suppressed. The facts here are akin to those in Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879 (Pa. 1998), in which a caseworker for a child protection service questioned the defendant in a noncustodial setting. The caseworker advised defendant that he had a right to an attorney. She offered to help the defendant, his child victim and the child's mother to get treatment and counseling. She told the defendant that if he did not talk to her, he would have to talk to the police and it would be harder talking to the police than it would be to her. Noting that noncustodial interrogation can in some situations result in an -8- 98-1852 CRIMINAL TERM involuntary confession, the Supreme Court of Pennsylvania, examining the totality of the circumstances, nevertheless concluded that defendant's confession to the protective service worker was voluntary and not the product of impermissible inducements. The Court stated: [K]auffman said that she would help Nester get treatment and counseling. She did not offer him leniency in a criminal prosecution. More importantly, the offer of assistance was not a quid pro quo for the confession because Kauffman did not tell Nester that if he confessed then he would receive treatment instead of being criminally prosecuted. See, e.g., Commonwealth v. Purnell, 412 Pa. Super. 462, 603 A.2d 1028 (1992) (offer to inform magistrate of defendant's cooperation not conditioned on defendant's confession). In fact, the 'rights' letter specifically advised him that CPS caseworkers must report evidence of child abuse to law enforcement officials. In these circumstances, Kauffman's offer to treatment did not deprive Nester of the power to make a voluntary confession. Third, Kauffman's statement to Nester that he would have to talk to police if he did not talk to her and it would be harder to talk to the police was not so coercive as to overwhelm Nester's ability to make a free and unconstrained decision to confess. Not all psychological persuasion is prohibited. Miller (3d Cir.); see also Commonwealth v.. Williams, 537 Pa. 1,640 A.2d 1251 (1994). Encouraging a suspect to cooperate with the investigation and answer questions honestly is a permissible interrogation tactic. Miller (3d Cir.); see also United States v. Vera, 701 F.2d 1349 (11th Cir. 1983); United States v. McNaughton, 848 F.Supp. 1195 (E.D.Pa. 1994). Moreover, Nester admitted that Kauffman never threatened to file charges or arrest him if he did not confess. She merely told him that he would have to talk to the police. Under these circumstances, Kauffman's comments were not impermissibly coercive. In the case sub judice, we conclude, based on the totality of the circumstances, that defendant's incriminatory statements to Detective Kibler on September 28, 1998, were not the product of impermissible inducements. Having reached this conclusion, the statements that defendant gave to Detective Kibler and -9- 98-1852 CRIMINAL TERM an assistant district attorney after he was arraigned are not suppressible on the basis that they emanated from the fruit of the poison tree. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this ~"~'~ day of March, 1999, the motion of defendant to suppress evidence, IS DENIED. Travis Gery, Esquire For the Commonwealth fidgar B. Bayley, J. /~ Ellen K. Barry, Esquire For Defendant :saa -10-