Ellis v. Commonwealth

694 S.W.3d 294

John D. ELLIS, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2023-SC-0096-MR

Supreme Court of Kentucky.

June 13, 2024

ON APPEAL FROM SIMPSON CIRCUIT COURT, HONORABLE RODNEY BURRESS, SPECIAL JUDGE, NO. 21-CR-00147

COUNSEL FOR APPELLANT: Matthew J. Baker, Baker Law Office.

COUNSEL FOR APPELLEE: Russell M. Coleman, Attorney General, Courtney J. Hightower, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE CONLEY

This appeal comes before the Court as a matter of right¹ from Simpson Circuit Court. The Appellant, John Ellis, was convicted by a jury of first-degree rape, second-degree burglary, and kidnapping. He was sentenced to fifty years in prison. Ellis raises only one issue: that the trial court erred when it failed to suppress his incriminating statements. He argues that these statements were made during a custodial interrogation, and he was not properly given Miranda warnings; that his girlfriend was an agent of the state when he made the incriminating statements to her; and that the Commonwealth illegally recorded his conversation with his girlfriend. We agree that Ellis was in custody and not properly informed of his rights according to Miranda. We further hold that the police failed to adhere to the acknowledged invocation of counsel by Ellis. Consequently, his statements should have been suppressed but were played at trial. This error was not harmless; therefore, we reverse his convictions.

I. Facts

On May 5, 2021, John Ellis appeared in a hospital reporting symptoms of a stroke. He was 65 years old at the time. Ellis was the subject of a missing person report, so Detective Jonathan Johnson went to the hospital, along with Detective Jonathan Carlock. Ellis had been missing for two or three days, and his disappearance coincided with the rape of Ashley.² Johnson testified that he believed Ellis was "somehow involved" but denied that he was suspected as the perpetrator. Ellis was requested to meet with the officers the next day at the Kentucky State Police post regarding his being missing. Ellis agreed. The next day, Ellis, and his girlfriend of approximately forty years, Margaret, came to the station. Margaret is the sister of Ashley. Ellis was escorted to an interview room and Margaret was left in the lobby.

Prior to the interview beginning a video camera was turned on to record the entire- ty of the interview. Ellis was never informed the video camera was recording. Johnson can be heard talking to another officer about his intention to get a buccal swab "pretty soon." We highlight this fact now because it is arguably inconsistent with Johnson’s testimony at the suppression hearing. At that hearing, Johnson denied that Ellis was a suspect in the rape case until approximately two hours into the interview, at which point he was given his Miranda warnings and asked to sign a waiver form. But he also admitted that the buccal swab was useless in the missing person case, which was one of the reasons given to Ellis as to its necessity (along with excluding all close family members in the rape case) and was gathered for the purposes of the rape case. Johnson also testified that police were interested in Ellis because he was the only male close to the family whose whereabouts the night of the rape could not be confirmed. Thus, by his own testimony, Johnson clearly thought Ellis was a suspect approximately an hour and thirty minutes prior to Ellis formally being given Miranda warnings.³ And, as the interview video shows, Johnson intended to get a buccal swab before the interview even began, thereby demonstrating that Ellis was a suspect all along since, as Johnson testified, the buccal swab was unnecessary for the missing person case and could only be relevant to the rape case. Thus, we make clear our understanding that Ellis was brought in as a suspect in the rape case and it was a convenient, though deceptive, stratagem to use the otherwise legitimate missing person case as the ostensible reason to request Ellis’ consent to questioning. Therefore, although Ellis did voluntarily go to the KSP post for questioning, it was under false pretenses.

The interview room’s exact dimensions are not known but the video shows that it is compact, only large enough for a small table and a handful of chairs. Ellis was seated on the far side of the table from the door and was flanked on both sides by a trooper, obstructing his ability to leave if he had desired or attempted to. Johnson testified that once Ellis was in the room, he was told he was not under arrest and free to leave, but the video shows (and the trial court noted) that no such statements were ever made. When asked how he was feeling, Ellis replied that his head was "still foggy" and his responses to the officers were delayed.

In the first hour of the interview there was nothing inculpatory stated and the questioning was normal and more or less relevant to the missing persons case, although questions about his whereabouts obviously pertained to the rape case as well. It was not until the end of the first hour that Johnson began questioning Ellis about his relationship with Ashley, including whether he was attracted to her. Then the detectives left the room for approximately ten minutes. When they came back, Johnson entered into a discourse about DNA as a preface to informing Ellis that his DNA had been matched to that found on Ashley after her rape. This was not true. The detectives then became accusatory in their questioning. Johnson stated that Ellis was treating them like "dumb cops," but that he "wanted to help you." Both officers then told Ellis that physical evidence would have more weight in court than Ellis’ protestations of not remembering what happened. Detective Carlock told Ellis that he wanted him to keep denying that he remembered anything so he could take the physical evidence to court and let a jury decide what would happen to him.

On the other hand, Carlock said, Johnson wanted Ellis to tell his side of the story to help him. Ellis then asked to see Margaret and was refused.

Detectives continued questioning along this same line. Carlock accused Ellis of calling Ashley every time Margaret was out of town. Johnson then stated that camera footage placed Ellis at Ashley’s home and that he was going to have to explain that. This was not true, and no such camera or video footage was admitted at trial. Johnson asked if Ellis had "planned it or did it just happen?" He asked variations of this question several times. Johnson also told Ellis that other cameras on the way to Ashley’s home had recorded him. Again, this was not true. Johnson also said that the tire treads on his car matched those found at the Ashley home. This was also not true. Johnson summarized that "mounds of evidence" existed against Ellis. At this point, Ellis stated questioningly, "I need to get a lawyer?" He clarified that he was only asking a question. Johnson told him that decision was up to him but said lie was ending the interview since he had requested an attorney. Carlock attempted to ask another question about Ashley, but Johnson cut him off. Carlock also specifically asked Ellis if he wanted a lawyer to which Ellis replied, "I think I do." Both officers then ended the interview. As Carlock left the room he stated, "We’re gonna [sic] go get [Margaret] and get you out of here in a second."

Approximately five minutes later, Johnson brought Margaret into the interview room. Johnson told Margaret she was brought in to "keep her in the loop," and that "we’re done talking to him as far as questions because he’s requested an attorney," and that "we can’t do anymore interviewing." Johnson then told Margaret that Ellis’ bank statements and phone records placed him in Denver, Colorado. He also told her that Ellis’ DNA matched the semen found on Ashley; again, this was false. Johnson told her that cameras showed Ellis’ car⁴ going to the Ashley residence. Ellis at this point began to speak, but Johnson spoke over him, telling him their conversation "is over." Johnson also told Margaret that "this probably isn’t the first girl," Ellis’ DNA would probably match DNA from other victims, and that "I can't believe that [Ashley] is his only victim."

Margaret, as a reminder, is Ellis’ girlfriend of forty years and Ashley’s sister. As Johnson later testified at the suppression hearing, he told her all these things hoping that she would question Ellis and "elicit a response." Margaret immediately began questioning him, "John, surely you didn’t?" Ellis gave a response of what he claimed to recall, which was not incriminating, but generally denying that he remembered a rape or even going to Ashley’s home.

Johnson then further engaged Margaret, telling her that Ellis had handcuffs and that the rapist had tried to handcuff Ashley. Johnson stated that normal people do not carry around handcuffs and that when they go to someone else’s house with handcuffs the "intent is there, wouldn’t you agree?" Margaret readily assented. Johnson and Carlock testified at trial that the handcuffs were in fact never recovered. After further emotional appeals by Johnson to Margaret, she then addressed Ellis, stating, "John, I just can’t even imagine why you would do that. Why’d you take my car and go to [Ashley’s] in the middle of the night?" Ellis replied, "I don’t remember, [Margaret]. I remember having some drinks like I usually do. Maybe I had too much, like I usually do." Margaret asked what would happen next, and Johnson replied that the DNA would have to be verified, but reiterated it was a match, and that "he’s gonna [sic] be charged."

After Johnson summarized Ellis’ flight records⁵ for the prior two days, Ellis stated, "I would do nothing to hurt her." Johnson addressed Margaret, "I know he says that but how does his DNA get on her?" The conversation continued along these same lines for another few minutes and Johnson then left but the video recording continued. Margaret began questioning...