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TH|S OP|NION lS DES|GNATED "NOT TO BE PUBL|SHED."
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RENDERED: AUGUST 24, 2017
NOT To BE PUBLISHED

Snpreme Tnuri of Benf_nckg

2015-sc-000696-MR
JEFFREY ROHRBACK APPELLANJ§_

ON APPEAL FROM MASON CIRCUIT COUR_T
` V. HONORABLE STOCKTON B. WOOD, JUDGE
‘ NO. 14-CR~00058

coMMoNWEALTH oF KENTUCKY ' APPELLEE

MEMORAN]_JUM OPINION OF THE COURT
' AFFIRMING

Appellant, Jeffrey-Lynn Rohrback, appeals from a judgment entered by
_ the Mason Circuit Court pursuant to a conditional guilty plea to first-degree
rape. For this offense, Rohrback Was sentenced to twenty years" imprisonment
I-le appeals as a matter of right. Ky. Const. § l 10(2)(b). Rohrback alleges that
the circuit court erred: 1) by denying his motion to suppress his statements to
law enforcement; and 2) by denying his motion to enforce a plea agreement l

For the following reasons, vire affirm the judgment and sentence of the

Mason Circuit Court.

FAcTUAL Amn PRocEnURAL BAcKGRoUND~

 

On March 31, 2014,- Maysville Police Department Detective Jered Muse

visited Rohrback’s apartment as part of an investigation into the alleged rape

and sexual abuse of a ten-year-old girl. Detective Muse requested that
Rohrback accompany him` to the police station, which was across the street
from Rohrback’s apartment Rohrback agreed and the pair walked back to the
police station for questioning

At the beginning of the interview, Detective Muse informed Rohrback that
he was free to leave and informed him of his Miranda rights. Approximately one
hour into the interview,-the topic of a polygraph examination came up. At that
point, Rohrback stated that “I want to go.‘ l want to leave.” However, Detective
Muse continued to question Rohrback. At the end of the interview, Detective
Muse asked if he could photograph Rohrback’s apartment Rohrback agreed
and the two walked over to the apartment together.

Several hours later, Rohrback returned to the lobby of the police station
and requested to speak with Detective Muse. Once in the interview room,
Detective Muse reminded Rohrback that he was free to leave at any time.
Mz'randa warnings were not repeated by Detective Muse for Rohrback’s second
interview. After making several incriminating statements, Rohrback concluded
the interview and returned home.

Shortly thereafter, Detective Muse again visited Rohrback’s apartment
and asked him if he was willing to write a letter of apology to the victim.
Subsequently, Rohrback accompanied Detective Muse ton the police station
where he wrote a letter of apology, which included incriminating statements

After completing the letter, Rohrback was arrested by Detective Muse.

In April 2014, Rohrback was indicted by the Mason County grand jury
for two counts of first-degree rape, two counts of first-degree sexual abuse, and
for being a second-degree persistent felony offender. Af`ter indictment,
Rohrback moved to suppress his oral and written statements to Detective Muse
arguing that they were obtained in violation of “[his] Miranda Rights, Right to
Counsel and Right to Remain Silent.” The circuit court held a hearing to
consider Rohrback’s claims. After hearing testimony from Detective Muse, the
circuit court concluded that Rohrback was not in custody when interviewed by
the police and as such denied thel motion to suppress1 d

Af`ter the denial of his motion to suppress, Rohrback withdrew his plea of .
not guilty and entered a conditional guilty plea. Rohrback pled guilty to a
single count of` first-degree rape. The remaining charges were dismissed For
this offense, the Commonwealth recommended a total sentence of twenty years,
and the circuit court sentenced Rohrback accordingly. Rohrback now appeals

as a matter of` right

 

1 At the suppression hearing, the circuit court also heard testimony concerning
a statement Rohrback made to a social worker from the Cabinet for I-Iealth and Family
Services. That statement was determined to be inadmissible at trial as Rohrback had
not been Mirandized and was subjected to a custodial interview by a state actor at the
Mason County Detention Center. .

ANALYSIS

I. Thel Circuit Court Properly Denied Rohrback’s Motion to Suppre¢s'.

Rohrback argues that the circuit court erred in denying his motion to
suppress.2 Initially, he contends that his confessions to police should have
been suppressed due ton inadequate Miranda warnings Rohrback also claims
that the police failed to discontinue questioning when he requested to end the
interview. We reject both arguments l

Ke`ntucky Rule of Criminal Procedure (RCr] 8.27 governs motions to
suppress evidence. Dat_)is v. Commonwealth, 48_4 S.W.3d 288, 290 (Ky.- 2016).
RCr 8.27(2) mandates that the circuit court “conduct a hearing bn the record
and before trial on issues raised by-a motion to suppress evidence.” Appellate
review of the circuit court’s ruling on a suppression motion “is a two-step
process that first reviews the factual findings of the trial court under a clearly
erroneous standard.” Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.
2004) l(citing Omelas v. Unite_d States, 517 U.S. 690, 699, 116 S. Ct. 1657,
1663 (1996)).3 Second, the Court “reviews de novo the applicability of the law

to the facts found.” Id.

 

2 Rohrback contends that the admission of this evidence violated his privilege
against self`- incrimination, as protected _by the Fifth Amendment to the United States
Constitution and Section 1 l of the Kentucky Constitution,

3 While RCr 8.27 does not articulate an appellate standard of review, we have
concluded that the application of` Kentucky Rule of Civil Procedure (CR] 52.01, i.e, “[a]
finding supported by substantial evidence is not clearly erroneous,” provides the
applicable standard. See Simpson v. Commonwealth, '474 S.W.3d 544, 547 (Ky. 2015)
(quoting Hunter v. Mena, 302 S.W.3d 93, 97 (Ky. App. 2010]).

. 4

Having reviewed the circuit court’s factual findings, we find that they are
supported by substantial evidence. The circuit court’s order accurately
summarized each of Rohrback’s interviews with the police'. Accordingly, our
review of the record establishes that thercircui_t court’s factual conclusions are
supported by the evidence. Moreover, we agree with the circuit court’s legal
conclusion that Rohrback was notin custody during any of the relevant times.

A. ‘Iiohrback Was Not in‘Custody for Miranda Purposes

Rohrback contends that Detective Muse gave him inadequate Miranda
warnings which downplayed the availability of an attorney during the
questioning4 I-Iowev_er, Rohrback was not even entitled to Miranda warnings
as he w_as not in Custody When questioned by police. '

The _Supreme Court “has determined that a suspect under custodial
interrogation must be given notice of the right against self-incrimination, with
such notice being contained in'the Miranda warnings.” Fugett v.
Commonwealth, 250 S.W.3d 604, 616 (Ky. 2008) (citing United States v.
creeeley, 224 F.sd 1847, 861 (6th cir. 2000)). Thue, the necessity er that notice
arises from the fact that the suspect was subjected to a custodial interrogation
“It is the ‘compulsive aspect of custodial interrogation, and not the strength or

content of the government’s suspicions at the time the questioning was

 

4 The Commonwealth contends that Rohrback’s challenge to his third interview
with police is not properly preserved for appeal. That interview consisted of` Rohrback
writing an apologr letter to the victim in this case. The Commonwealth argues that
Rohrback’s failure to include that letter in the record should bar `our review. However,
we decline to do so and will consider the merits of Rohrback’s claim.

. . 5

conducted’ that implicates Mr`randa.” }United States v. Uaenski, 434 F.3d 690,
704 (4th Cir. 2006) (q`uoting Beckwith 1). United States, 425 U. S._ 341, 346, 96
_S. Ct. 1612, 1616 (1976)). Custodial interrogation has been defined as
“_questioning initiated by law enforcement after a person has been taken into
custody or otherwise deprived of freedom of action in any significant way.”
Fugett, 250 S.W.3d at 618 (quoting Commonwettlth v. Luca`s; _ 195 S.W.3d 403,
_ 405 (Ky. 2006)). w l d
“[T]he_ initial determination of custody d`epends~on the objective

circumstances of the interrogation, not on the subjective views harbored by
either the interrogating officers or the person being questioned ” Jackson v.
Commonwealth,_ 187 S. W. 3d 300, 310 (Ky. 2006) (quoting Stansbury. 1).
Ca_lifomia, 511 U.S.-318, 320, 114 S. Ct. 1526, 1528-29 (1994)).' “[T]he
~ ultimate inquiry is simply whether there was a formal arrest or restraint don
freedom of movement of the degree associated with a formal arrest.” Id. See _
' elec rhcmpeen a Keo`rtette, 516 U.s. 9_9, 112, 1 16 's. "ct. 457, 465 (1996).
(“[W]ould a reasonable person have felt he or she was not _at liberty to terminate
_ the interrogation and `leave[?]”). Additionally, “[a] custody determination cannot
bed4 based on bright-line rules, but must be made only after considering the
totality cf the circumstances cf eachl case.” Jceieecn; 1a7 s.w.ad at aio.

n -_ l?_egarding the circumstances of Rohrback’s first interview, Detective
Muse went to Rohrback’s home to ask if he would accompany him across the
street to the police station for questioning Subsequently, Rohrback voluntarily

_ accompanied Detective Muse to the police station. Once in the interview room,

6

Detective Muse informed Rohrback that he was free to leave at any time. There
is no suggestion by Rohrback that he was restrained or threatened .with the
use of physical force during his interview. At the close of the interview,
Rohrback left the police station without h'indrance. After reviewing the totality
of Rphrback’s first interview, we cannot say that there was a restraint on his
liberty to the degree associated with a formal arrest, as required to constitute
custody. See Oregon v. Mathittson,. 429 U.S. 492, 495, 97 S. Ct. 711, 714
(1977] (defendant was not in custody when questioned at police station, where ‘
he went voluntarily, was informed he was not under arrest, and was permitted
to leave the station after his `inter-'view).

l\lor was Rohrback in custody during his second interview with police.
Not long after his first interview, Rohrback returned to the police station of his
own volition and requested to speak with Detective Muse. After Rohrback and
Detective Muse reentered'the interview room, Detective Muse again reminded
Rohrback that he was free to leave at any time-. After a thirty-minute interview`,
Rohrback left the police station and walked home. A review of the totality of
the circumstances clearly establishes Rohrback was not in custody during this
second, voluntary encounter. See United States v. Browrt, 7 F.3d 1155, l 164
(5tl'1 Cir. 1993) 7(defendant not in custody where he “voluntarily appeared at the
police station, gave the statement,‘and left the station of his own accord.”)-.

Nor was Rohrback in custody during his third and final interview with
the police. Shortly after Rohrback’s second interview, Detective Muse went to

Rohrback’s residence. Detective Muse__asked if Rohrback would return to the

7 .

police station to write a letter of apology to the victim. The possibility of
Rohrback writing a letter to the victim had been discussed in his earlier
interviews Rohrback agreed and accompanied Detective Muse back to the
station. Subsequently, Detective Muse left Rohrback alone in the interview
room to write his letter, When Rohrback finished writing, Detective Muse read
the letter and placed Rohrback under arrest v

lhe circuit court noted that it Was unclear whether Rohrback would have
been permitted to.leave the police station after returning to write the letter, had
he not composed same. Yet, the circuit court determined that the writing of
the letter was done at a time when Rohrback was not in custody. The basis for
. this conclusion Was due to the fact that “-[Rohrback] had not been arrested; he
had voluntarily been to the Maysville Police Department twice earlier that day,
and he had voluntarily returned earlier without being prompted to do so, for a
second interview.” After considering the totality of the circumstances of
Rohrback’s third interview with police, we agree with the circuit court that
Rohrback was not in custody. See Joseph v. Coyle, 469 F.3d 441, 468 (6th Cir.
2006) (defendant was not in custody despite being voluntarily transported from
workplace to sheriff’s office by deputy, having already been questioned by a
police twice earlier that day, and not having been told that he was free to leave
the interrogation).

Accordingly, We reject'Rohrback’s claim that he was in custody On each

occasion that he was interrogated by the police. AS Rohrback Was not in

custody, his questioning by the police did not implicate Mir'anda. Theref`ore,
~ the circuit court properly denied Rohrback’s motion to suppress on this issue. 5

B. As Rohrback’s Was Not in Custody for Miranda Purposes His
Invocation of I-Iil Right to Silence Was Ineffe'ctive. `

Rohrback contends that he invoked his right to remain silent during
questioning, but that Detective Muse ignored this invocation and continued the
interrogation Specifically, when asked to take a polygraph examination during t
his first interrogation, Rohrback informed Detective Muse, “l Want' to go. I want
to leave.” Rohrback argues that his statements made after he requested to end
the interview should be suppressed as Detective Muse “failed to scrupulously

honor his right to cut off questioning.”

 

5 However, even if we were to» agree with Rohrback that he was in custody when
questioned by the police, the Miranda warnings given in this case were sufficient At
the beginning of Rohrback’ s irst interrogation, Detective Muse told him:

[t]hat you have the right to remain silent, anything you say can and will
be used against you in court You have the right to an attorney; if you
can’t afford one the courts will appoint one for you. You don’t have, to
answer my questions, you say, “I ain’t talking to you no more, I want to
speak to an attorney” then that’s it You understand that?

Rohrback contends that this recitation of his Miranda rights, “did not adequately
inform [] Rohrback that he could have a lawyer present there with him during the
questioning Instead [Detective] Muse implied that speaking with an attorney was
something [] Rohrback would do later, after questioning.” We disagree. Detective
Muse’ s Miranda warning adequately conveyed the essential information to Rohrback.
The Supreme Court has emphasized that it “has never indicated that the ‘rigidity’ of
Mr'randa extends to the precise formulation of the warnings given a criminal _'
derentiant.” career-nra v. Pryseck, 453 U.s. 355, 359, 101 `s. ct. 2806, 2809 (1981).
Ftirther, the Supreme Court has explained that “reviewing courts are not required _to
examine the words employed "as if construing a will or defining the terms of an
easement The inquiry is simply whether the warnings reasonably ‘conve[y] to [a
suspect] his rights as required by Miranda.’” Flort`da v. Powell, 559 U.S. 50, 60, 130 S.
Ct. 1195, 1204 (2010) (quoting Duckworth v. Eagan, 492 U.S. 195, 203, 109 S. Ct.
2875, 2880 (1989)). ' `

'9

When a person “is in custody and subjected to police interrogation [he]
must be informed of his right against self-incrimination or as standard in
Miranda warnings, his right to remain silent.” Bar'tley 1). Comrrtonwealtlr, 445
S.`W:Sd 1, 5-(Ky. 2014) (citing Miranda,- 384 U.S. 436, 444-45, 86 S.,Ct 1_6_02, _
1612 (1966)]. However,' the privilege against self-incrimination is not
automatic, but must be claimed by the accused. Id. (citing Um`ted States v. a
Monio, 317 U.s§ 424, 427, 63 s. ct. 409`, 410 (1943)`). The supreme court has
repeatedly recognized that “no ritualistic formula or talismanic phrase is n
essential in order to invoke the privilege against self-incrimination.” Emspak`ri.
United stotee, ,349 U.s. 190, 194, 75 s. ct. 687, 690 (1955).\ _Rather, the words
used by the accused in invoking his rights are to be “understood' as ordinary
people would lunderstandthem[.]” Connecticut v. Bctrrett, 479 U.S. 523, 529,
107 ls. ct. 828, 832 (1987)`. Fnrther, while the accused'e invocation of hie.
rights need -not_be formal, his assertion of silence must be unequivocal Buster'
v. Commonwea.lth, 364 S.W.3d 157,-162 (Ky. 2012) (citing Berghuis v.
Tl'lompki`ns, 560 U.S. 370, 381, 130 S. Ct. 2250, 2256 (2010]). A:fter the
assertion of the right to remain silent, the police must end the interrogation
Id. at 163.

In the case at bar, Rohrback clearly asserted his right to silence. By
stating that he -“want`[ed] to go” and “want[ed] toleave,” it was obvious that
Rohrback sought to discontinue his interview with Detective Muse.
Additionally, when Detective Muse asked Rohrback for clarification “[s]o you

just want to leave it like this?”, Rohrback replied, “[l]eave it-. Let the chips fall

10

where they may. I mean, l know what I did and didn’t do, I’m sorry for wasting
your time.” It is evident that Rohrback wished to discontinue his interview
with Detective Muse-and expressed his desire to do so.

Rohrback contends that Detective Muse’s continued questioning violated
his right to silence and'as such mandated the suppression of his subsequent
statements to police. l We disagree as Detective Muse was only required to cease
his questioning if Rohrback asserted‘his right to silence while being the subject
of a custodial interrogation

Miranda;s commandment that questioning cease when a suspect

indicates he intends to exercise his Fifth Amendment privilege does
not apply, however, in situations-. . . where the defendant has
available the easier and more effective method of invokingthe
privilege simply by leaving . . . Law enforcement officers enjoy the
same liberty as every other ci_ti'zen to address questions to other
persons. When those persons are not in custody or deprived of
their freedom of action in any significant way, they have an equal
right to ignore such questions and walk away and do not need the
protection of Miranda.
Spn'nger v. Commonwealth, 998 S.W.2d 439, 447 (Ky. 1999) (quoting State v.
Dt`:tvis, 290 S.E.2d 574, 585 .(N.C. 1982-)); See also McNeil v. Wisconsin, 5_01 U.S_.
171, 182 n. 3, 1 11 S. Ct. 2204, 2211 n. 3 (1991). (“We have i`n fact never held
that a person can invoke his Mirand`a rights anticipatoiily, in a context other
than ‘custodial interrogation[.]’”].

` Given that Rohrback was not in custody, he was not in need of or .

entitled to the protections of Miranda. Rohrback was free to ignore Detective

Muse’s questions or simply end his interrogation by walking out of- the police

ll

station Accordiiigly, Detective Muse’s continued questioning did not violate
Rohrback’s'iight to remain silent

II. The Circuit Court Properly De_nied Rohrback’s Motion to Enforce a Plea
Agreeme_nt '

Rohrback contends that the circuit court erred by denying his motion to `
enforce a plea agreement allegedly reached with the _Commonwealth.
Additionally, Rohrback argues that if the plea agreement was no_t to be
enforced, that the circuit court should have suppressed his statements to
1 police made in conjunction with those plea discussions6 The standard of
- review for the circuit court’s evidentiary ruling is abuse of discretion

ll/Ieskr'men v. Corrtmonwealth, 435 S.W.3d 526, 534__(Ky. 2013) (citing Anderson
r)_. Commonwealth, 231 S.W.3d 117, 119 -(Ky. 2007)).

Kenmcky Rule of Evidence_ (KRE) 410(4) bars the admission at trial of
.“any statement made in the course of plea discussions with an attorney for the
prosecuting authority which do not result in a plea of guilty or which result in
a plea of guilty later withdrawn.” “[A] conversation,constitutes ‘plea _
discussions’ when (1) the accused exhibits an actual subjective expectation to
negotiate a plea at the time of the discussion and (2) the accused’s expectation
is reasonable given the totality of the objective circumstances.” Clutter v.

Commo‘nwealth, 364 S.W.3d 135, 138 (Ky. 2012) (citing United States v.

 

6 Rohrback also argues that his statements should have been suppressed due
to coercion This argument was not presented to the circuit court and as such it will
not be considered on appeal. See Kertnedy v. Commonwealth, 544 S.W.2d 219, 222
(Ky. 1976), overruled on other grounds by Wr`lbum v. Commortwealth, 3 12 S.W.3d 321
(Ky. 2010]. (“[A]ppellants will not be permitted to feed one can of worms to the trial
judge and another to the appellate court.”].

12

~

Robertson, 582-F.2d 1356, 1366 (5th Cir. 1978]); Rober'ts v. Commonwealth,
896 S.W.2d 4, 5-6 (Ky. 1995)). “[P]lea discussions with an attorney for the
prosecuting authority’ include discussions with the prosecutor as well as
discussions with law enforcement officials who are either acting with the
express authority of the prosecutor or who state they are acting with such 1
anthority.” rez. (citing Roterte, 896 s.w.2c1 at 6).

' At the hearing on Rohrback’s motion, the circuit court heard,testimony
from both Detective Muse and Rohrback about whether a plea offer had been '
extended Rohrback testified that Detective Muse said something to the effect
of “if you really care about the child, you would admit it,_ write-an apology
letter, and leave the state for eight years.” Detective Muse testified that when
he spoke to Rohrback he did not state o'r imply to Rohrback that he had
.' communicated with the Commonwealth’s Attorney or that he had authority
from the Commonwealth’s Attorney to make a plea o`ffer. Detective Muse did
admit, in concluding a conversation-with Rohrback, that he said “if you ever
decide you want to come and speak to me anymore, maybe l can go and talk to
the family about you going out of state.” Detective Muse also noted that he
' informed Rohrback during his interrogation that he had not spoken to the
victim’s family and that it was important that he not “man up” to something he v
did-not do.

…After hearing this testimony, the circuit court concluded “that there was
no offer by Detective_Muse, that [Rohrback] could not have reasonably

interpreted what was said as an offer, that Detective Muse did not represent

13

that the Commonwealth’s Attorney had authorized any offer, and that iri fact
the Commonwealth’s Attorney had not authorized any offer.” Additionally, the
circuit court noted that in Rohrback’s recorded interview, he appeared to
acknowledge it was the decision of the victim’s mother as to whether he would
be permitted to go out of state. As such, the circuit court determined that
Rohrback was aware that “the victim’s mother had to give approval but had not
been consulted, that there was no offer; there Was only a hope that the victim’s
family would request leniency.”

After reviewing the record, we agree with the circuit court that there Was
no plea offer extended to Rohrback, Further, we conclude that KRE 410(4) is
not applicable in the case at bar. Even if we were to find that there was
sufficient evidence to establish Rohrback’s subjective expectation to negotiate a
'plea, his expectation was unreasonable given the totality of the Objective
circumstances

Detective Muse gave no indication to Rohrback that he had spoken to the
prosecuting authority_or that he was empowered to enter into plea
negotiations d F`urther, Detective Muse informed Rohrback that he had not yet
spoken to the victim’s.family, which would be essential to any potential
resolution Rohrback appears to acknowledge this reality in his discussion
with Detective Muse, understanding that it would be the victim’s mother’s
decision as to whether he would be permitted to leave the state. As such
Rohrback was aware that there was no plea offer, but rather that he was

cooperating out of a hope that the family would request leniency from the

14

Coiiimonwealth’s Attorney and the circuit court As Rohrback’s expectation to
negotiate a,plea was unreasonable under the totality of'the objective
circumstances, the circuit court properly exercised its discretion in denying
Rohrback’s motion
l ` l y coNcLUsroN
For the foregoing reasons, we affirm the conviction and sentence of the
Mason Circuit Court.

- All sitting. All concur.

COUNSEL FOR APPELLANT:
Molly Mattingly

Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:

Andy P;eshear
Attorney General of Kentucky

Leilani K, M. Martin

Assistant Attorney General
Office of Crir_ninal Appeals

15

