           IMPORTANT NOTICE
     NOT ·To BE PUBLISHED OPINION
                                    '   (




  THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
  PURSUANT TO THE RULES OF CIVIL PROCEDURE
  PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
  THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
  CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
  CASE IN ANY COURT OF THIS STATE; HOWEVER, _
  UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
  RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
  CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
  OPINION THAT WOULD ADEQUATELY ADDRESS T6E ISSUE
  BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
  BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
  DECISION I~ THE FILED DOCUMENT AND A COPY OF THE
  ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
  DOCUMENT TO THE COURT AND ALL PARTIES TO THE
/ ACTION.
                                                     RENDERED: DECEMBER 14, 2017
                                                             NOT TO BE PUBLISHED




                                      2016-SC-000684-MR


QUINTON THOMAS QUARLES                                                      _APPELLANT


                        ON APPEAL FROM CHRISTIAN CIRCUIT COURT
v.                        . HONORABLE JOHN L. ATKINS, JUDGE
                                    Nb. 15-CR-00022


COMMONWEALTH OF KENTUCKY                                                      APPELLEE



                         MEMORANDUM OPINION OF THE COURT

                                          AFFIRMING

      Appellant, Quinton Quarles, and Keith "Slick" Ivory, were gambling at a
            .   I                                    .




house party in Hopkinsville, Kentucky, on the night of NovemlSer 22, 2014.
                    '
Quarles and Ivory got into a series of altercatioiis. ,One witness,. Frank '

Williams, Jr., helped break up.one fight. He then saw Quarles retrieve a long-

barreled revolver from the trunk of a car. Williams attempted to prevent

Quarles from re-entering the home, but was angrily pushed aside by Quarles,

who started a second confrontation with Ivory. Quarles stuck the revolver in

Ivory's face and Williams asked Quarles not to shoot Ivory.

      Ivory then left the building, and Williams watched from the front door as

Quarles followed Ivory into the parking lot and began a third confrontation.

Although Williams         ~ould   not hear their exchange of words, he -witnessed Ivory
making ha.rid gestures and then saw Quarles raise the handgun and fire a

single shot at Ivory's face, which resulted in Ivory's death: Ivory was unarmed.

Quarles was subsequently arrested.

      Upon his arrival at the Hopkinsville Police Department, Quarles was read
     .  .                                           J          .
his Miranda rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and

signed a "Waiver of Rights" form. Quarles was subjected to custodial

interrogation from approximately 10:00 a.m. to 2:07 p.m. He voluntarily

agreed to talk to the police without a lawyer present. Qµarles did not request

for an attorney to be present before he would consent to spe8.king with the

police. However, Quarles ·asked for an attorney to be present before he would

consent to submit to a polygraph test or a Gun Shot Residue (GSR) test.

      Because Quarles would not voluntarily submit to a GSR test, detectives

acquired a valid search warrant to conduct the test In response to further

questioning during administration of the GSR test, Quarles admitted to owning

the cell phone seized from his mother's house arid gave Detective Brian Smith

the password to unlock the cell phone. He also told Detective Smith that no.

one else had access to his cell phone between 2:00 a.m. and 7:30 a.m. on the

day of the shooting.
                                                        .         \.._
      Quarles was subsequently indicted and. tried for the murder of Ivory. At

trial, the Commonwealth offered several witnesses who described the

encounters between Qu~les and Ivory the night of November 22, 2014. The

Commonwealth also introduced electronic data extracted from Quarles's cell

phone through forensic means and the use of Quarles's password by Detective

                                       2
Albert Finley, Hopkinsville Police Department Electronic Crimes Unit.

Detective Finley offered testimony about the data he extracted, which showed a

"Google search" for how to remove gunshot residue from one's hands was

conducted at 2:07 a.m. on November 22, 2014-the day of Ivory's shooting.

      In his defense, Quarles did not tes:f:ify or put forth any witnesses to rebut
                 \

the prosecution. A Christian Circuit Court jury convicted Quarles of murder.

The trial court sentenced him to thirty years' imprisonment based upon the

jury's recommendation.

                              Motion to Suppress

      Prior to trial, Quarles moved to suppress all statements made at the

police department because he had invoked his right to counsel. The trial court

concluded that Quarles's request for an attorney was ambiguous.

      In Brown v. Commonwealth, 416 S.W.3d 302 (Ky. 2013), we stated: "Our
                                      ..
review of a trial court's ruling on a motion to suppress 'requires a two-step

determination ... [t]he factual findings by the trial court are reviewed under a

clearly erroneous standard, and the application of the law to those facts is

conducted under de novo review. m Id. at 307 (quoting Cummings v.
                                                  ~




Commonwealth, 226 S.W.3d 62, 65 (Ky. 2007)). Because the facts are not in

dispute, we will conduct a de novo review.

      Under Miranda, a person has the right to counsel during a custodial

interrogation. Miranda, 384 U.S. at 444. However, Miranda rights may be

waived by choosing to speak without counsel present, "provided the waiver is

made voluntarily, knowingly, and intelligently." Id.

                                           3
      To determine whether the right to counsel has been invoked, the accused

·must "articulate his desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would understand· the statement

to be a request for an attorney." Da11is v. United States, 512 U.S. 452, 459

(1994). After the· accused makes an unequivocal and unambiguous request for

counsel, "the interrogation must cease until an attorney is present." Miranda,

384 U.S. at 474.

      The invocation of counsel is properly made where the accused

"articulate[s] his desire to have counsel present sufficiently clearly that a

reasonable police officer in the circu,mstances would understand the statement

to be a request for an attorney." Davis, 512 U.S. at 459. In other words, "[i]f

reasonable minds could differ on whether a request for an attorney had been

made, the language is perforce ambiguous or equivocal." Burnett v.

Commonwealth, No. 2005-SC-000820-MR, 2008 WL 746615, at *6 (Ky. March

20, 2008) (Noble, J., concurring in result only).

      At 10:38 a.m., Quarles was asked if he would submit to a polygraph test,

and he made a conditional request for counsel to be present before he would

consent:

      Quarles: That's alright. But I would like to have my lawyer present
      before I do it ... I don'! have one; I need one appointed to me. I
      can't afford one; I need one appointed to me.

      Detective Randall Greene: If you're adamant about what
      happened, why would yo-q.?

      Quarles: Because I would like to have my lawyer present.


                                         4
       Detective Greene: Alright.

       Detective Greene: I think what-we're gonna do, since you don't
       have an attorney yet that can be present for the polygraph, we'll
       talk about that later. '1 I'll wait on that, okay?

 Quarles appeared to answer "Alright" and did not·unequivocally state that he

 wanted a lawyer present at that time, nor did he c:hoose to remain silent. The

 detectives   respec~ed   his right not to consent and did no.t perform a polygraph.

       At 10:59 a.m., w:Q.en Quarles was asked to submit to a GSR test,      ~e


 requested to speak with an attorney before he would consent to take the GSR

 test or any other tests:
                                  '                     .
       Quarles: I don't want fo do anything unless I talk to a l~wyer.
       (Inaudible) I .understand that, but I don't have a legai advisor,
       advice on this . .J'm not legally trained. So, I want to talk to a
       lawye'r before I do anything. I mean, (inaudible) I would prefer to
       talk to a lawyer before I do anything.

       Here, we find that Quarles made an unequivocal invocation of his right to

 counsel prior to the GSR test, when he stated, "I want to talk to a lawyer before

 I do anything." Under the circumstances, a reasonable police officer would

 have understood Quarle's's statement as a request for counsel to be present

 prior to the-GSR test. Davis, 512 U.S. at 459.

       If an accused requests counsel, a confession in response to further

questioning without counsel present is inadmissible unless the accused waived
                                           .             .        )


his right to counsel by reinitiating the questioning. Quisenberry v.

_Commonwealth, 336 S.W.3d 19, 30 (Ky. 2011) (quoting Davis, 512 U.S; at 458).

However, "[o]nly the suspect may reinitiate dialogue with the authorities; the

authorities cannot continue to cajole or otherwise induce the suspect to

                                               5
continue to speak without first affording the suspect an attorney." B-,:adley v. ·

Commonwealth, 327 S.W.3d 512, 518 (Ky. 2010) (citing Edwards v. Arizona,

451 U.S. 477, 484-85 (1981)).

      Once Quarles unequivocally requested counsel, all questioning should

haye ceased, unless Quarles voluntarily revived the interrogation. Bartley v.

Commonwealth, 445 S.W.3d 1, 5 (Ky. 2014). Instead, during the administering

of the GSR test, the detectives pressured Quarles to answer questions about

his cell phone, stating that they would inevitably find the information through

forensic means with or without his cooperation.
               '

      Responses given to police after a suspect invokes· his Fifth

Amendment right to counsel must be suppressed under the so-called

exclusionary rule to discourage·police misconduct. Bq,rtley, 445 S.W.3d

at 5. ("If the police continue to press the issue, and the defendant makes

incriminating statements, those statements are properly suppressed.").

Thus, the answers Quarles gave to questions about his cell phone should

have been suppressed.
                .     Id.
                       .


      Yet, this constitutional error need not disturb 'the trial court's ruling if

the error was harmless. Our standard for finding that a constitutional error --

was harmless "is whether we are convinced· 'beyond a reasonable doubt that

the error complained of did not contribute to the verdict obtained.'" Dickerson

v. Commonwealth, 485 S.W.3d 310, 327 (Ky. 2016) (quoting .Chapman v.

California, 386'U.S. 18, 24 (1967)).



                                         6
      Put another way, we consider. the itnproper evidence in the context of the

entire trial and ask, "whether there is any substantial possibility that the

outcome of the case would have been different without the presence of that

error." Thacker v. Commonwealth, 194 S.W.3d 287, 291 (Ky. 2006).

      "With this standard in mind, examining the nature of the constitutionally

offensive evidence in the context of the entire trial, and in light of the

overwhelming ·evidence of [his] guilt," pickerson, 485 S.W.3d at 327, we

conclude that the improperly-introduced evidence was harmless beyond a

r~asonable   doubt. The proof from multiple witnesses was that Quarles
                    '                                                   (


continually badgered Ivory and initiated three different confrontations with

him, including threatening to shoot Ivory and pointing a loaded gun at the

victim's head. Witness Williams testified that it all culminated when he saw

Quarles intentionally kill the victim at point-blank range with a pistol. Quarles

put forth no evidence in his own defense.

      The statements taken from Quarles were indicative only of an attempted

cover-up of the crime. However, we are aware of its importance. The only

evidence·put forth by Quarles in his own defense was the submission of the

negative GSR test. Thus, the ·cell phone data showing he visited a     w~bsite

which gave direction on how to rid himself of gunshot residue was highly

incriminating. Though damning as it may have been, it is our opinion that the

absence of the "Google search" would not have altered the verdict against him.

Consequently, we hold that admission of the illegally-obtained statements from




                                         7
Quarles about his cell phone password and usage on November 22, 2014, was

· harmless error.

       Furthermore, since we have ruled that the data from Quarles's cell phone
                                                                  /


should have been .suppressed, but was harmless error, the issue of the

authentication of that information under KRE 901 is moot.

                                Jury Instructions

       At trial, Quarles requested that, in addition to a murder instruction, the

jury be given instructions on the lesser-included offenses of manslaughter in

the first-degree, manslaughter in the second-degree, and reckless homicide.

His requests were denied. When considering whether a trial court erred by not

giving an: instruction required by the evidence, we review for abuse of

djscretion. Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015). "An

instruction on a lesser included offense is required only if, considering the
                         .                      /



totality of the evidence, the jury might have a reasonable doubt as to the

defendant's guilt of the greater offense, and yet believe beyond a reasonable

doubt thathe is guilty of the lesser offense." Commonwealth v. Hasch, 421

S.W.3d 349, 356 (Ky. 2013) (quoting Houston v. Comrrionwealth, 975 S.W.2d

925, 929 (Ky. 1998)).

      Manslaughter First-Degree

      We ·first address whether the instruction for manslaughter in the first-

degree was required by the evidence. The offense of manslaughter in the first-

degree is defined in KRS 507.030: ·

      (1) A person is guilty of manslaughter in the first degree when:

                                        8
      (a) With intent to cause serious physical injury to another person,
          he causes the death of such person or of a third person; or ·

      (b) With intent to cause the death of another person, he causes the
          death of such person or of a third person under circumstances
          which do not constitute murder because he acts under the
          influence of extreme emotional disturbance, as defined in
          subsection (l)(a) of KRS 507.020; ..· ..

      Duiing the confrontations between Quarles and Ivory, witnesses stated

that Quarles threatened that he should have or could have pistol-whipped

Ivory. Because the· evidence shows Quarles shot Ivory in the head rather than

settling on pistol-whipping him, Quarles's "intent" was clearly to do more than

cause serious physical injury to his unarmed victim. Thus, the only way

Quarles may have been   entitl~d   to a manslaughter in the first-degree ·

instruction is if he acted under the influence of extreme emotional disturbance.

KRS 507.030(1)(b).

      Extreme Emotional Disturbance

      We review the evidence presentetl at trial to determine if extreme

emotional disturbance (EED) was made an issue, and whether the trial court

abused its discretion by not providing a jury instruction on EED. See Greene v.

Commonwealth, 197 S.W.3d 76, 82 (Ky. 2006). "The test for abuse of

discretion is whether the trial judge's decision was arbitrary, unreasonable,

unfair; or unsupported by sound legal    princ.~ples."   Commonwealth v. English,

993 S.W.2d 941, 945 (Ky. 1999).




                                         9
      To establish extreme emotional disturbance in a homicide prosecution,

we have stated:

      There must be evidence that the defendant suffered "a temporary
      state of mind so enraged, inflamed, or disturbed as to overcome
      one'sjudgment, and to cause one .to act uncontrollably from [an]
      impelling force of the extreme emotional disturbance rather than
      from evil or malicious purposes. [T]he ev~nt which triggers the
      explosion of violence ·on the part of the criminal defendant must be
      sudden and uninterrupted."

      Hunt, 304 s:w.3d at 34 (citations omitted).

      At trial, the Commonwealth presented ample evidence to establish
                                                                     '·

that Quarles shot Ivory with the intent to kill. Notably, the
           I




Commonwealth offered witness testimony that Quarles's deadly behavior

was deliberate and premeditated. He initiated several. confrontations

with Ivory before ultimately deciding to shoot him. Thus, his actions

were not the result of a "sudden and uninterrupted" event.

      In contrast, Quarles offered no witnesses to prove, nor did he

testify, that he killed Ivory while experiencing extreme emotional

disturbance. Furthermore, Quarles offered no proof of imperfect self-

defense warranting a reckless homicide instruction: Ivory was unarmed,

and no evidence showed that Quarles felt he needed to use deadly .force

to protect himself.. See Hasch, 421 S.W.3d at 356 (discussing the two

theories of reckless homicide: "straight" reckless homicide and "imperfect

self-defense"). Therefore, the trial court acted within its discretion, as no

evidence existed to warrant instruction on any lesser-included offenses.


                                        10
                                  Conclusion

       For the reasons stated herein, we hereby affirm the decisions of the

 Christian Circuit Court.

       All sitting. All concur.


 COUNSEL FOR APPELLANT:


 John William Stewart


 COUNSEL FOR APPELLEE:

  Andy Beshear
. Attorney General of Kentucky

 Thomas Allen Van De Rostyne
 Assistant. Attorney General



                                             \
                                                 I




                                        11
