Hernandez v. Commonwealth

671 S.W.3d 217

Ruviel HERNANDEZ, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2022-SC-0138-MR

Supreme Court of Kentucky.

April 27, 2023

COUNSEL FOR APPELLANT: Karen Shuff Maurer, Frankfort, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Daniel Cameron, Attorney General of Kentucky, Jenny Lynn Sanders, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE BISIG

A jury of the Greenup Circuit Court found Appellant Ruviel Hernandez guilty of one count of first-degree rape and four counts of first-degree sexual abuse for acts perpetrated against his niece D.M. The jury recommended a sentence of life on the rape conviction and five years on each of the sexual abuse charges, running consecutively for a total sentence of life plus twenty years. The trial court sentenced in accordance with that recommendation.

Hernandez now appeals to this Court as a matter of right. KY. CONST. § 110 (2)(b).

After careful review, we discern no error in the trial court's denial of Hernandez's motion to suppress his voluntary interview with law enforcement or in the trial court's admission of other bad acts evidence pursuant to KRE ¹ 404(b). We therefore affirm his convictions. However, because we conclude (and the Commonwealth does not dispute) that Hernandez's sentence was unlawful, we vacate that sentence and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant Hernandez is a native of Mexico who came to the United States in 2003 when he was approximately twenty-one years old. English is not Hernandez's first language. After coming to the United States, Hernandez married Haley Crum. Haley's sister Brenda has four children, including D.M. and L.M. Brenda and her children would visit Haley and Hernandez at their apartment. The Commonwealth alleged that Haley and Brenda would sometimes leave the apartment during these visits, leaving Hernandez in charge of D.M., L.M., and the other children.

In 2015 D.M. and L.M. alleged that Hernandez touched them inappropriately during some of these visits between October 2013 and October 2014 when they were approximately 10 and 5 years old, respectively. More particularly, D.M. alleged that on four separate occasions Hernandez called her into a separate room in the apartment from the other children, then touched her breasts and vagina both over and underneath her clothing. L.M. similarly alleged that Hernandez touched her breasts and vagina on two occasions, once in a room in the apartment and once between two cars at a park. Trooper Nathan Carter opened an investigation and interviewed Hernandez, who denied the allegations. No arrest or charges were made at that time.

In 2018, D.M. further alleged that Hernandez had also inserted his penis in her vagina during an incident in a bathroom during the same time period of October 2013 to October 2014. After being contacted regarding this new allegation, Hernandez agreed to voluntarily appear for another interview with Trooper Carter. The recorded interview took place in a room at the local office of the Cabinet for Health and Family Services. Hernandez sat unrestrained in the seat nearest the door of the room, which was left cracked open. Trooper Carter was the only officer in the room. He sat across the desk, away from the open door, and informed Hernandez that he could leave at any time and was not under arrest. Trooper Carter did not touch Hernandez, was wearing a uniform, and was wearing but did not display a gun.

Trooper Carter did not provide Hernandez with Miranda warnings before or during the interview. Though English is not Hernandez's first language, Trooper Carter also did not ask him if he wanted the services of an interpreter. Nor was such an interpreter provided. Trooper Carter told Hernandez on several occasions during the interview that he knew Hernandez had inappropriately touched D.M. and that he could indict him and put him in prison. Near the conclusion of the interview, Hernandez confessed to D.M.’s allegations and stated D.M. "pushed him" to engage in the alleged acts and "wanted sex." However he continued to deny L.M.’s allegations. Trooper Carter then placed Hernandez under arrest. The interview lasted less than forty minutes.

A Greenup County grand jury indicted Hernandez on one charge of first-degree rape and four charges of sexual abuse in the first-degree. These charges related only to D.M.’s allegations and did not involve any alleged conduct against L.M. Before trial, the Commonwealth filed a motion to introduce other bad acts evidence of L.M.’s allegations against Hernandez pursuant to KRE 404(b), though Hernandez had never been charged regarding those allegations. Hernandez filed a motion to exclude such evidence as well as a motion to suppress his interview with Trooper Carter.

The trial court held a hearing on the suppression motion on November 22, 2021 and ruled that suppression was not warranted because Hernandez was not in custody during the interview and could understand Trooper Carter. The trial court did not hold a hearing regarding the KRE 404(b) motion, but rather ruled orally from the bench at trial prior to L.M.’s testimony that her allegations were admissible to show motive and lack of mistake.

The jury convicted Hernandez of one count of first-degree rape and four counts of first-degree sexual abuse and recommended a sentence of life on the rape conviction and five years on each of the sexual abuse convictions to run consecutively for a total sentence of life plus twenty years. On March 17, 2022 the trial court entered a judgment sentencing Hernandez consistent with that recommendation. Thereafter, the trial court entered a written order on April 7, 2022 memorializing its oral grant of the Commonwealth's KRE 404(b) motion at trial. Hernandez now appeals as a matter of right.

ANALYSIS

Hernandez raises three issues for our review: (1) whether the trial court erred in refusing to suppress his interview given Trooper Carter's failure to provide Miranda warnings and an interpreter; (2) whether the trial court erred in admitting other bad acts evidence regarding L.M.’s allegations against Hernandez pursuant to KRE 404(b) ; and (3) whether running Hernandez's life sentence for rape consecutive to the twenty-year sentence for sexual abuse was unlawful. We address each issue in turn, providing additional facts as necessary.

I. The trial court did not err in finding Miranda warnings were not required because Hernandez was not in custody at the time of his interview with Trooper Carter.

Hernandez first argues the trial court erred in denying his motion to suppress his interview with Trooper Carter because Trooper Carter failed to provide Miranda warnings before the interview. This allegation of error is preserved by Hernandez's filing of a motion to suppress before the trial court raising the issue. Nichols v. Commonwealth , 142 S.W.3d 683, 691 (Ky. 2004).

When considering a trial court's ruling on a motion to suppress, we review the trial court's findings of fact under the clear-error standard and thus defer to those findings if they are supported by substantial evidence. Cox v. Commonwealth , 641 S.W.3d 101, 113 (Ky. 2022). We review the trial court's application of law to those facts de novo. Id.

It is well-established that under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), "statements made by an accused during a custodial interrogation are inadmissible unless the accused is advised of his rights."

Wise v. Commonwealth , 422 S.W.3d 262, 270 (Ky. 2013) (emphasis added). In particular, the suspect " ‘must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.’ " Id. at 269-70.

However, Miranda requires such warnings only "when the suspect being questioned is in custody." Cecil v. Commonwealth , 297 S.W.3d 12, 16 (Ky. 2009). A person is not in custody and thus Miranda warnings are not required if "considering the surrounding circumstances, a reasonable person would have believed he or she was free to leave." Id. In applying this test, we examine the totality of the circumstances, including factors such as:

1) the location of the interview;

2) the number of officers present;

3) the brandishing or display of a weapon by officers;

4) any physical touching of the suspect by officers;

5) whether the suspect was handcuffed or otherwise restrained;

6) any tone or language suggesting that compliance would be compelled;

7) statements made during the interview;

8) the duration of the interview; and

9) whether the suspect was released at the end of the interview.

Id. ; Wells v. Commonwealth , 512 S.W.3d 720, 723-24 (Ky. 2017). The Commonwealth bears the burden of demonstrating that the suspect was not in custody. Taylor v. Commonwealth , 611 S.W.3d 730, 743 (Ky. 2020).

Here, we conclude that the totality of the circumstances are such that a reasonable person would have felt free to terminate the interview with Trooper Carter and leave. Trooper Carter explicitly told Hernandez at the beginning of the interview that he was not under arrest and was free to leave at any time. The physical setting of the interview was consistent with that representation, occurring in a room in the offices of the Cabinet for Health and Family Services rather than at the police station. The door of the room was, though perhaps only cracked, nonetheless open rather than closed. Hernandez sat by that door, while Trooper Carter sat on the opposite side of the desk away from the door. Trooper Carter, though uniformed, was the only officer in the room. He did not brandish or display a weapon. He did not physically touch Hernandez, nor was Hernandez handcuffed or otherwise restrained. In reviewing the recorded interview, we also discern no threatening tone or language in Trooper Carter's statements. To the contrary, it is apparent that Trooper Carter endeavored to be amicable and...