             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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINIO"" IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN 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: FEBRUARY 16, 2017
                                                       NOT TO BE PUBLISHED

               ~uprtmt <tinurf of ~tnfutk}!
                               2016-SC-000228-MR


LOUIS TORRES                                                           APPELLANT


                 ON APPEAL FROM FAYETTE CIRCUIT COURT
V.              HONORABLE JAMES D. ISHMAEL, JR., JUDGE
                            NO. 14-CR-01189


COMMONWEALTH OF KENTUCKY                                                 APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING


      On October 2, 2014, Sergeant Aaron Greenleaf was working as a

detective in the Special Victim's Unit of the Lexington Police Department. In

response to a call he received regarding a juvenile sexual assault, Sergeant

Greenleaf went to the hospital and spoke with the victim, Alexis!, who was

eleven years' old at the time. Her uncle, Louis Torres (Appellant), was identified

as a suspect. Sergeant Greenleaf, along with Sergeant Brotherton and a social

worker drove to Nicholasville to speak with Appellant. A uniformed

Nicholasville police office was also present.


            Pseudonyms are being used to protect the anonymity of the child victim.
      Once the two detectives arrived at Appellant's residence around 3 A.M.,

they knocked on the door and were allowed inside by Appellant's nephew,

Rene. The Appellant does not challenge the officers' entry into the home. Rene

led the officers upstairs to Appellant's room and knocked on the bedroom door.

Appellant, who had been awakened, opened the door. Sergeant Greenleaf

asked the uniformed Nicholasville officer to step outside because he didn't want

Appellant to feel pressured. Sergeants Brotherton and Greenleaf were wearing

plain clothes and were carrying concealed weapons. Sergeant Greenleaf

informed Appellant that something had come up in the family and then asked

Appellant if he would accompany the officers to Lexington to speak with them.

Appellant said yes.

      Appellant sat in the front passenger seat of an unmarked police car

during their journey to Lexington. Sergeant Brotherton informed Appellant on

multiple occasions that he was not under arrest. They spoke in English and

Spanish. Once they arrived at the Lexington police station, Sergeant Greenleaf

interviewed Appellant. Greenleaf informed Appellant that he was not under

arrest, that he was free to go, and that he did not want Appellant to think that

he was keeping him there against his will. Appellant was also provided an

incomplete recitation of the Miranda warnings. An interpreter was used during

this entire conversation. Appellant stated that he wanted to talk. At no time

during the two hour interview did Appellant ask to leave or be taken back to

his residence.




                                       2
      Appellant was arrested at the end of the interview and charged in Fayette

County with multiple counts of sexual abuse.

      Prior to trial, Appellant filed a motion to suppress the interrogation

evidence. The Fayette Circuit Court made oral findings and ultimately

concluded that Appellant was not in custody for Miranda purposes. As a

result, Appellant entered a conditional guilty plea to three counts of first-degree

sexual abuse, reserving the right to appeal the trial court's ruling on the

suppression motion. Appellant received a total sentence of twenty years'

imprisonment. Appellant now appeals his judgment and sentence as a matter

of right pursuant to§ 110(2)(b) of the Kentucky Constitution.

                              Motion to Suppress

      The only issue before this Court is whether the trial court erred in

denying Appellant's motion to suppress his interview with the police at the

Lexington police station. Of course, the underlying issue is whether Appellant

was in custody at the time of the interview or prior thereto. See Miranda v.

Arizona, 384 U.S. 436 (1966). We review the trial court's factual findings for

clear error, but the question of custody is reviewed de novo. King v.

Commonwealth, 302 S.W.3d 649 (Ky. 2010) (reversed on other grounds).

      In Smith v. Commonwealth, we stated that "[c]ustody does not occur until

police, by some form of physical force or show of authority, have restrained

the liberty of an individual." 312 S.W.3d 353, 358 (Ky. 2010) (citing Baker v.

Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999)). The United States Supreme



                                        3
Court has identified more precise factors indicating that a suspect is in

custody:

      [T]he threatening presence of several officers; the display of a
      weapon by an officer; the physical touching of the suspect; and the
      use of tone of voice or language that would indicate that
      compliance with the officer's request would be compelled.

Id. citing (United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

In addition, Smith also identified several other factors for courts to consider:

      (1) the purpose of the questioning; (2) whether the place of the
      questioning was hostile or coercive; (3) the length of the
      questioning; and (4) other indicia of custody such as whether the
      suspect was informed at the time that the questioning was
      voluntary or that the suspect was free to leave or to request the
      officers to do so, whether the suspect possessed unrestrained
      freedom of movement during questioning, and whether the suspect
      initiated contact with the police or voluntarily admitted the officers
      into the residence and acquiesced to their requests to answer some
      questions.

Id. at 358-59 (citations omitted).

Nearly all of the aforementioned factors weigh in favor of the trial court's

determination that Appellant was not in custody for Miranda purposes during

his initial confrontation, transport or questioning by the officers.

      Appellant testified at the suppression hearing that he felt he had no

choice but to accompany the officers to Lexington. He also argues that he was

not fluent in English and therefore could not understand Sergeant Greenleaf's

questioning. However, a recording of the encounter at Appellant's residence

demonstrates that Appellant had no problem understanding Sergeant

Greenleafs English. In addition, Sergeant Greenleaf specifically asked the

uniformed officer to step outside because he didn't want Appellant to feel

                                         4
pressured. And although Appellant may have been surprised when he was

awoken by the presence of the officers inside his home, he does not challenge

the officers' entry into the home. Moreover, nothing in the record indicates

that the officers threatened or physically contacted Appellant, nor did they

display a threatening presence at any time.

      Appellant was also not in custody while he voluntarily traveled to

Lexington with the officers. Appellant was unrestrained and sat in the front

seat of the officer's unmarked vehicle during the trip. In this regard, the

present case is similar to Peacher v. Commonwealth, 391 S.W.3d 821 (Ky.

2013). In Peacher, this Court held that the defendant was not in custody due

in part to the facts that the defendant "was not frisked and was in no way

compelled or restrained. He rode, rather, as a passenger in the front seat of

the detective's unmarked vehicle." Id. at 847. In addition, Sergeant Brotherton

informed Appellant on multiple occasions during the trip that he was not under

arrest.

      Appellant testified that although he had been informed multiple times

that he was not under arrest, he did not feel that way. However, "[t]he test is

whether, considering the surrounding circumstances, a reasonable person

would have believed he or she was free to leave." Smith, 312 S.W.3d at 358.

This is an objective test that is not dependent on a defendant's subjective

belief. Considering the totality of the surrounding circumstances, Appellant

was not in custody during his transportation by the officers to Lexington.




                                        5
      Applying the factors discussed in Smith, it is similarly clear that, on

balance, Appellant was not in custody for Miranda purposes while he was being

interviewed at the police station. Although police stations are certainly not the

most relaxing venue for questioning, they are one of the most common. In

addition, nothing in the record indicates that the officers threatened or

physically contacted Appellant, nor did they display a threatening presence

during the interview. See Mendenhall, 446 U.S. at 554. Furthermore, the

interview lasted only two hours. This is not an unreasonable amount of time

for questioning.

      In Beckham v. Commonwealth, for example, the Court determined that

the defendant was not in custody even though the defendant's encounter with

the police lasted over six hours. 248 S.W.3d 547, 551 (Ky. 2008). In support

of its ruling, the Court noted that the interviewing officers informed the

defendant that he was free to leave, that the defendant never expressed any

desire to leave or cease his cooperation, and that the defendant was not

physically coerced by the officers. Id. at 551-53.

      Similar to Beckham, the interrogating officer in the present case,

Sergeant Greenleaf, informed Appellant that he was not under arrest and that

he did not want Appellant to think that he was keeping Appellant there.

Appellant stated that he wanted to talk. At no time during the two hour

interview did Appellant ask to leave or be taken back to his residence. Under

these circumstances, "a reasonable person would have believed he or she was

free to leave." Smith, 312 S.W.3d at 358.

                                        6
      Therefore, Appellant was not in custody and, thus, not entitled to

Miranda warnings. As such, Sergeant Greenlears incomplete recitation of the

Miranda warnings prior to the interview was unnecessary and irrelevant for

purposes of the foregoing analysis. Accordingly, we affirm the trial court's

denial of Appellant's motion to suppress.

                                  Conclusion

      For the foregoing reasons, we hereby affirm the judgment and sentence

of the Fayette Circuit Court.

      All sitting. All concur.




COUNSEL FOR APPELLANT:

Linda Roberts Horsman
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Courtney J. Hightower
Assistant Attorney General




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