Cox v. Commonwealth

641 S.W.3d 101

Johnny R. COX, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2020-SC-0391-DG

Supreme Court of Kentucky.

FEBRUARY 24, 2022

COUNSEL FOR APPELLANT: Shannon Renee Dupree, Assistant Public Advocate, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Daniel Cameron, Attorney General of Kentucky, Robert Lee Baldridge, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE LAMBERT

Johnny R. Cox (Cox) entered a conditional guilty plea to first-degree sexual abuse and second-degree persistent felony offender (PFO). He reserved the right to appeal the trial court's denial of two motions to suppress an interview with police wherein he confessed. The Court of Appeals affirmed the trial court's rulings, and Cox appealed. This Court granted discretionary review to address two issues. First, whether Cox knowingly, voluntarily, and intelligently waived his Miranda¹ rights prior to speaking with police. And, whether Cox unambiguously and unequivocally invoked his right to counsel during the interview.

After review, we affirm the Court of Appeals’ holding that Cox knowingly, voluntarily, and intelligently waived his Miranda rights, though on slightly different grounds. We reverse the Court of Appeals’ holding that Cox did not invoke his right to counsel. Accordingly, we remand this case for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 23, 2015, Detective Joseph Oliver (Detective Oliver) responded to a call regarding an investigation into the sexual abuse of a child. When he arrived at the scene, two witnesses told him they saw Cox touch a nine-year-old girl on her vagina with his hand while giving her a hug. The victim, Cox's niece,² also told the detective that Cox touched her vagina. Detective Oliver then went to Cox's home and asked him to come to the police station to speak with him; Cox did so willingly. Before the interview, Detective Oliver Mirandized Cox. Cox waived his rights and eventually confessed that he "made a mistake" and "probably" touched the victim on her vagina. He was subsequently indicted on one count of first-degree sexual abuse, victim under twelve, and one count of first-degree PFO.

In August 2016, the defense filed a motion to suppress Cox's interview with Detective Oliver on the grounds that he did not knowingly, voluntarily, and intelligently waive his Miranda rights. Defense counsel asserted that Cox's low IQ and history of mental illness prevented him from understanding his Miranda rights and the consequences of abandoning them. In response, the Commonwealth requested that he be sent to Kentucky Correctional Psychiatric Center (KCPC) for an evaluation regarding his competency to stand trial and his criminal responsibility. The trial court ordered the same in September 2016.

Several months later, the trial court conducted a competency hearing. The sole witness was Dr. Jaclyn Williams (Dr. Williams), the psychologist who performed Cox's competency and criminal responsibility evaluations during his nearly two-week stay at KCPC. Based on her evaluations, Dr. Williams compiled a report wherein she opined that Cox was competent to stand trial and could be held criminally responsible for his actions.

In her report, Dr. Williams recounted Cox's lengthy history of hospitalizations. Cox had previously been admitted to KCPC five times between 1989 and 2014; Bluegrass Regional Mental Health Center (Bluegrass Regional) two times between 2006 and 2007; Eastern State Hospital (Eastern State) fourteen times between 1985 and 2007; and the University of Kentucky Hospital (UK Hospital) nineteen times between 2004 and 2013.

Cox's first admission to KCPC, from February to April 1989, was an inpatient admission; he was diagnosed with polysubstance abuse and borderline intellectual functioning. The KCPC evaluator determined him to be competent to stand trial. He was treated again at KCPC, this time on an outpatient basis, on February 24, 1998. During that stay, he was diagnosed with "Alcohol Dependence, Rule out for unspecified Cognitive Disorder, Rule out Unspecified Psychotic Disorder, and Personality Disorder with schizotypal and antisocial features." The KCPC evaluator concluded that he was not competent to stand trial, and referred him to KCPC for inpatient treatment. That inpatient treatment occurred from March to May 1998. Cox was diagnosed with "Unspecified Schizoaffective Disorder, Chronic Substance Dependence (cocaine, alcohol, marijuana, and solvents), Adjustment Disorder with depression and anxiety, and Mild [intellectual disability]" and was opined competent to stand trial.

During his fourth KCPC admission, from March to May 1999, he was diagnosed with "a Combination of Drug Dependence Excluding Opioid Type Substances, Adjustment Disorder with Mixed Mood and Emotions" and mild intellectual disability. His evaluator concluded that he was competent to stand trial and could be held criminally responsible for his actions.

His fifth KCPC admission occurred between January and February 2014. He was diagnosed with "Polysubstance Abuse in forced remission[,] Rule out Unspecified Depressive Disorder, Malingering, Rule out Dementia, Mild, secondary to long term alcohol abuse, and Unspecified Personality Disorder with Antisocial traits." His records from this admission state that he "refused to put forth any effort on any of the tasks." He received scores "significantly below chance" on the Test of Memory Malingering (TOMM), which "[suggested] that he knew many of the right answers but purposefully chose the wrong ones." And, on the Miller Forensic Assessment of Symptoms Test (MFAST) his total score "was substantially above the cut off established for assessing exaggeration of psychiatric symptoms and complaints."

Cox's two admissions to Bluegrass Regional seemed to be more closely related to his long-standing substance use disorder. He was admitted in August 2006 to detox following an arrest and was diagnosed with alcohol dependence and psychotic disorder, not otherwise specified. Cox left after three days against the staff's advice. He was admitted again less than a year later in April 2007. His primary reason for admission was his desire to stop drinking. He self-reported some paranoia and hearing voices at night that were "commenting on his behavior." He was diagnosed with alcohol dependence and psychotic disorder and again left against the staff's advice after a week.

Cox's diagnoses during his numerous admissions to Eastern State included: alcohol dependence; antisocial personality disorder ; history of seizure disorder; mild intellectual disability; adjustment disorder; unspecified personality disorder with antisocial traits; mood disorder, not otherwise specified; unspecified psychotic disorder ; cocaine abuse; cannabis abuse; borderline traits; borderline intellectual functioning; and depression. During one stay in 1990 he was evaluated and found competent to stand trial.

Finally, several of Cox's admissions to UK Hospital led to seventy-two hour holds due to his level of intoxication. At various times he self-reported hearing voices telling him things like "get some help." His diagnoses included "Alcohol Abuse; Unspecified Mood Disorder; History of Schizophrenia and Depression; Mild Intellectual Disability; Schizoaffective Disorder ; Rule Out Malingering; Depression; Cocaine Abuse; and Rule Out Psychotic Disorder."

Pertaining to the competency evaluation ordered in this case, Dr. Williams testified that Cox's effort varied somewhat, but overall he did not put forth good effort during testing. On the TOMM, which is normed on individuals with conditions such as traumatic brain injuries and neurodegenerative disorders, Cox's scores were "grossly below chance levels of responding." According to Dr. Williams, even individuals with extreme memory dysfunction can score 45/50 on the TOMM. Cox's scores were 10/50; 5/50; and 6/50, respectively. Dr. Williams concluded that Cox's scores were "incontrovertible evidence of feigning memory impairment and cognitive functioning." Similarly, on the MFAST, Dr. Williams testified that any score above 6 indicates that an individual is exaggerating or over-reporting psychiatric symptoms; Cox's score was 19. Cox put forth such poor effort on other measures, such as the Inventory of Legal Knowledge (ILK) test and the Kaufman Brief Intelligence Test (KBIT-2), that they could not be completed.

Because of his poor effort on the KBIT-2, Dr. Williams was unable to determine Cox's IQ. However, his school records revealed that his full-scale IQ was 61 when he was eight years old. Dr. Williams testified that a person's IQ score tends to remain stable throughout his or her life, and she would accordingly expect that Cox's IQ is still in the 60s range.

To assess Cox's competency to stand trial, Dr. Williams administered the Competency Assessment for Standing Trial for Individuals with Mental Retardation (CAST-MR). The CAST-MR consists of three sections: the first two sections are multiple choice and the third section consists of open-ended questions about the details of the individual's own criminal case. Cox provided poor effort and scored significantly below chance on both of the multiple-choice sections of the assessment. However, on the open-ended questioning portion of the test, he scored 9/10. Cox evinced an understanding of the differing roles of the individuals involved in a trial. He knew that his attorney wanted him to be found not guilty; that the judge "decides what is going on, if you're guilty or not guilty,"³ and that if "you're not guilty he has to cut you loose." He also knew that the prosecutor was trying to "get [him] ten years." Cox likewise understood the plea-bargaining process. When asked what would happen if he pled not guilty, he responded, "I can't stand a trial, but it would have to go to trial." He identified plea offers that he would be likely to accept as well as those that he would adamantly refuse,...