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                                            RENDERED: SEPTEMBER 24, 2015
                                                    NOT TO BE PUBLISHED

              Suprrtur Gild of 17,firttfuritv
                              2014-SC-000140-MR



AARON RASHAD CAMPBELL                                                 APPELLANT


                 ON APPEAL FROM FAYETTE CIRCUIT COURT
V.                HONORABLE PAMELA GOODWINE, JUDGE
                          NO. 10-CR-01585-001


COMMONWEALTH OF KENTUCKY                                               APPELLEE


AND                           2014-SC-000360-TG


AARON RASHAD CAMPBELL                                                 APPELLANT


                  ON TRANSFER FROM COURT OF APPEALS
V.                    CASE NO. 2014-CA-000482-MR
                 FAYETTE CIRCUIT COURT NO. 11-CR-00639


COMMONWEALTH OF KENTUCKY                                               APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Aaron Rashad Campbell conditionally pled guilty in two separate but

related robbery prosecutions.' Both prosecutions were for first-degree robbery

of the same victim, separated in time by a number of months. Under the terms

of his guilty plea, Campbell now challenges the trial court's denial of his motion

       1 10-CR-01585-001: the "2010 robbery"; and 11-CR-00 639: the "2009
robbery."
to suppress his confessions in both prosecutions. 2 Campbell's sole argument

is that repeated implicit promises of leniency during interrogation overbore his

will, essentially coercing his confession. We disagree and find Campbell was

neither promised leniency nor was his will overborne by police conduct.

Campbell's convictions and related sentences, therefore, are affirmed.


               I. FACTUAL AND PROCEDURAL BACKGROUND.

      In August 2009, intruders entered David Norris's home, tied him up, hit

him in the head, and robbed him of $70,000. A police investigation failed to

produce any suspects for over a year.

      Norris was robbed at home again in October 2010. This time, two men

entered his home, tied him up, and made off with his credit card. Police began

another investigation, aided in this instance by surveillance videos of

individuals using credit cards at local stores and by Crimestoppers. Within a

short time, Michael Washington emerged as a suspect.

      Washington eventually confessed to the crime and implicated Campbell,

his cousin, as the other participant. After arresting Campbell, police

questioned him about the robbery multiple times. Ultimately, Campbell

confessed to being involved. In light of the information gained from Campbell's

statement, police became suspicious that Washington and Campbell were




        2 Given the length of Campbell's sentence for the 2010 robbery, he appeals as a
matter of right. See Ky.Const. § 110(2)(b). Campbell's appeal for the 2009 robbery
does not meet the requirements of § 110(2)(b) but was consolidated with the
2010 robbery appeal due to the extent of overlapping facts and arguments.

                                           2
involved in the earlier robbery of Norris's home. Forensic evidence verified this

suspicion. Campbell eventually confessed to the second robbery, as well.

      Campbell was separately indicted for each robbery of Norris's home.

Before trial, Campbell filed a motion to suppress both of his confessions on

grounds that police made promises of leniency and coerced him into

confessing. The trial court denied Campbell's motions following a hearing. As

a result, Campbell entered a conditional guilty plea, reserving the right to

appeal the trial court's decision. For the 2010 robbery, Campbell pleaded

guilty to second-degree robbery and was sentenced to ten years' imprisonment.

And for the 2009 robbery, Campbell pleaded guilty to first-degree robbery and

being a second-degree Persistent Felony Offender (PFO 2) and, accordingly, was

sentenced to twenty years' imprisonment. Campbell's sentences were ordered

to run consecutively. The only issue now on appeal for our review is the trial

court's denial of Campbell's suppression motion.


                                     II. ANALYSIS.

      Appellate review of trial court rulings on motions to suppress is two-

pronged: (1) Any factual findings by the trial court are conclusive as long as

they are supported by substantial evidence; and (2) The application of the law

to those facts, however, is reviewed de novo. 3

      The fundamental concern for affording a defendant due process

mandates that confessions or other statements procured through coercive

means be excluded. Generally speaking, a defendant's speech is tainted with

       3   See Ornelas v. United States, 517 U.S. 690, 691 (1996).

                                             3
coercion when his "will has been overborne and his capacity for self-

determination critically impaired . . .      ." 4   A statement is admissible, in other

words, when that statement was made voluntarily, i.e., "the product of an

essentially free and unconstrained choice by its maker". 5 When reviewing an

allegedly coerced confession, we attempt to answer three points: "(1) whether

the police activity was 'objectively coercive'; (2) whether the coercion overbore

the will of the defendant; and (3) whether the defendant showed that the

coercive police activity was the 'crucial motivating factor' behind the

defendant's confession." 6 The totality of the circumstances, including "the

characteristics of the accused and the details of the interrogation[,]" aid us in

this analysis.

      The coercion Campbell alleges today is not of the physical variety.

Campbell was not mistreated, abused, denied food or rest, or mishandled in

any way. Of course, "coercion can be mental as well as physical . . .           ." 8   After

all, the "blood of the accusedis not the only hallmark of an unconstitutional

inquisition."9

          It is acceptable for police to use a certain degree of psychological tactics

in obtaining a suspect's confession. Various courts, including the United

          4   Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973).
       5 Bailey v. Commonwealth, 194 S.W.3d 296, 300 (Ky. 2006) (quoting
Schneckloth, 412 U.S. at 225).
          6   Id. at 301 (quoting Henson v. Commonwealth, 20 S.W.3d 466, 469 (Ky.
1999)).
          7   Schneckloth, 412 U.S. at 226
          8   Blackburn v. Alabama, 361 U.S. 199, 206 (1960).
          9   Id.
States Supreme Court, have allowed police to "play on the suspect's

sympathies or explain that honesty might be the best policy for a criminal who

hopes for leniency from the state[.]" 10 This Court has, for example, permitted

police to engage in strategic deception by misrepresenting the strength of the

evidence against the suspect. 11 Promises, whether of leniency or otherwise,

bring about somewhat special concerns with regard to a voluntary confession.

That said, courts are in agreement that police "may validly make some

representations to a defendant or may discuss cooperation without rendering

the resulting confession involuntary.         " 12   More specifically, courts have

permitted police to "initiate conversations on cooperation, . . . promise to make

a defendant's cooperation known to the prosecutor, and . . . even be able to

make and breach certain promises without rendering a resulting confession

involuntary." 13

          Campbell alleges that his mental will was overborne as a result of the

police's repeated promises of leniency in exchange for his confession and

threats of increased punishment if he did not confess. Campbell also alleges

he was coerced because the police threatened his girlfriend. We find

Campbell's arguments meritless.




          10   Miller v. Fenton, 796 F.2d 598, 605 (3d Cir. 1986) (compiling cases).
          11   Springer v. Commonwealth, 998 S.W.2d 439 (Ky. 1999).
          12   United States v. Shears, 762 F.2d 397, 401-02 (4th Cir. 1985) (compiling
cases).
          13   Id. (compiling cases).

                                                     5
       Campbell's interrogations and related discussions with police were calm

affairs with neither Campbell nor police ever becoming agitated. The

interrogations were conducted in a casual manner with routine breaks.

Campbell was permitted to smoke cigarettes, drink sodas, and contact family

members. In fact, at one point, Campbell thanked police for being so kind to

him.

       Before reviewing the respective interrogations, it is important to mention

that Campbell was given Miranda14 warnings at the beginning of both

interrogations and acknowledged he understood those rights. The common

Miranda recitation warns the defendant that anything he says can and will be

used against him. As a result, Campbell entered the interrogation with the

knowledge that if he confessed to the robberies, he could be prosecuted. In

order for Campbell's confessions to be rendered involuntary, the friendly

demeanor and supposed promises by police would have to overcome

Campbell's belief that the Commonwealth intended to prosecute him and

sentence him to jail, if convicted.

       Police first met with Campbell in November 2010 following his arrest.

The focus of this interrogation was the 2010 robbery. During this

interrogation, the police continually emphasized that they were not talking with

Campbell to determine what happened; rather, they wanted to know why

Campbell had robbed Norris. Consistent with this mission, police requested

Campbell unburden himself and try to provide context to the robberies


       14   Miranda v. Arizona, 384 U.S. 436 (1966).

                                             6
because, on their face, they looked bad. The police acknowledged that

prosecutors often ask questions such as: "What was he like?"; "Was he

remorseful?"; "Was he honest?"; or "Did he seem like he cared?" Police

reminded Campbell they needed him to be honest with them about why the

robbery occurred so they could answer those questions. Throughout the

interrogation, police reminded Campbell that his best bargaining chip was his

honesty and being completely honest would look better than lying.

       Campbell expressed concern for Michael and sought a deal for him

because Campbell felt as if Michael's participation was his fault. Police

reminded Campbell that Michael had already provided a statement and his

statement aligned neatly with the forensic evidence. Police then counseled that

if his statement differed, he or Michael must be lying and that would mean no

deal. The overall tone of the interrogations was far short of coercion.

      At some point before Campbell's pretrial hearing for the 2010 robberies,

he cut his ankle monitor and fled. Campbell was eventually apprehended by

U. S. Marshals in April 2011 at his girlfriend's house. 15 Following his arrest,



       15 Campbell was arrested in his girlfriend's apartment while she was home.
After he was handcuffed, the U. S. Marshals took Campbell's girlfriend into a nearby
bedroom, shut the door, and proceeded to have a conversation with her regarding
Campbell and her culpability for harboring a fugitive. The evidence is unclear whether
Campbell heard this conversation. He argues on appeal that the police were
objectively coercive in taking his girlfriend behind closed doors and "threatening" her
with prosecution if she did not disclose information. This argument is baseless. There
was no threat—Campbell's girlfriend certainly could have been prosecuted for
harboring a fugitive. After all, Campbell was arrested in her home. Regardless,
Campbell is unable to present evidence that he heard the conversation or that it had
any impact on his decision to confess to police.
        The same can be said for Campbell's argument regarding his nephew's
mother. Apparently, police were quite rude to her when they arrived at her home
                                           7
Campbell requested to talk with the detectives he had spoken with previously.

This time, Campbell wished to speak about the 2009 robbery. The following

exchange, in our view, dispels any notion that the interrogation was conducted

in an objectively coercive manner:

             Campbell: Let me ask you a question. If I tell you, how are
                       you going to be able to help me out?

             Detective: I'll be honest with you, I can't make you any
                          promises saying I'll get you this . . . . I don't
                          mind, the way I'm working is if you're . . . .
             Campbell: I'm not worried about calling a lawyer. I'm not
                          worried about that . . . .

             Detective: The way I work is if you're totally honest with me
                         and you lay it all out on the table and you give
                         me everything, I have no problem going to bat
                         for you. You're a young guy . . . you're a nice
                         guy, Aaron and you've made some mistakes.
                         And that's all they are—mistakes. . . . You're
                         not a bad guy. You made a mistake.

             Campbell: I'm not gonna bullshit you. Only thing I'm
                        afraid of is, say I tell you and nothing happens
                        for me.

This is how the second interrogation began. Campbell set the tone early that

he wanted something in return for any potential confession. No promises were

made to him. In fact, the police explicitly acknowledged no promises could be

made. We fail to see any coercion with regard to Campbell's interrogation

relating to the 2009 robbery.




looking for Campbell and were quick to remind her that she could be prosecuted for
harboring a fugitive if she was not truthful about his whereabouts. Campbell was not
in the home at this point, so we are unsure how this interaction had any bearing on
Campbell's decision to confess.

                                          8
      At what point promises of leniency, implied or explicit, reach coercion is

an interesting question—a question the Supreme Court has offered somewhat

mixed 16 guidance on over time. It is a question, however, that we need not

answer to find Campbell voluntarily decided to confess. Police offered to assist

Campbell, do everything in their power, or talk to the prosecutor on his behalf;

but, for the majority of his discussions with police, Campbell was in control.

Campbell actively bargained with police, seeking leniency for his cousin, help

with lowering his bail, and participation in the home incarceration program. 17

                                                                                        Havingformedcinvsatowhplcebufr

punishment hardly seems like the conduct of an individual whose will has been

overborne.



        16 See Bram v. United States, 168 U.S. 532, 557-58 (1897) (holding promises of
leniency or police comments intended to instill hope of leniency constitute coercion:
"In this court the general rule that the confession must be free and voluntary—that is,
not produced by inducements engendering either hope or fear—is settled by the
authorities referred to at the outset."); Hutto v. Ross, 429 U.S. 28, 30 (1976) (applying
Bram in plea bargain context); but see Arizona v. Fulminate, 499 U.S. 279, 285 (1991)
(distinguishing Bram because it "does not state the standard for determining the
voluntariness of a confession . . . .")
       17 These questions indicate Campbell's knowledge and experience with the
criminal justice system. The trial court took this into consideration when denying
Campbell's motion to suppress. On appeal, Campbell mentions that this was
improper. But the citation provided by Campbell provides little support for his
position. To the contrary, it seems the case law supports the trial court's position.
After all, the totality of the circumstances includes a review of the accused, as well as
the various aspects of interrogation. Various courts have explicitly acknowledged—
some even stressed the importance of—the role a defendant's prior experience plays in
assessing whether a confession was voluntary. See, e.g., Stein v. New York, 346 U.S.
156, 185 (1953) ("The limits [of permissible questioning tactics] in any case depend
upon a weighing of the circumstances of pressure against the power of resistance of
the person confessing. What would be overpowering to the weak of will or mind might
be utterly ineffective against an experienced criminal.") overruled on other grounds by
Jackson v. Denno, 378 U.S. 368 (1964); United States v. Oglesby, 764 F.2d 1273, 1278
(7th Cir. 1985).

                                            9
      Receiving something in return for a confession was not a concept injected

into the situation by police, at least not solely. And police stopped short of ever

truly promising Campbell anything, outside of simply offering to talk to the

prosecutor and present Campbell's side of the situation. There was no

guarantee of leniency, and we are unconvinced Campbell believed leniency was

forthcoming. In any event, Campbell fails to offer any indication that his hopes

of leniency served as a "crucial motivating factor" 18 in his decision to confess.

While we can never be certain of a defendant's subjective motivations to

confess, a review of the evidence indicates it is more plausible that Campbell

confessed because he wanted to protect his cousin and he was remorseful for

the troubles he was putting his family through. In the end, it may be fair to

say Campbell's confession was made in the hope of leniency; but we cannot say

from our review of this record that Campbell confessed in response to any

promise of leniency. 19

      Police comments to Campbell most likely served as an impetus for him to

come clean about the robberies. But we simply are unable to hold that the

police's "non-answers," as Campbell labels them, exerted enough psychological

pressure to overcome the "will of a mature, experienced man, who was

suffering from no mental or physical illness" 20 and was not interrogated for an

unreasonable time or in an unreasonable manner.



      18 Bailey, 194 S.W.3d at 301.
      19   Miller, 796 F.2d at 610.
      20   Id. at 613.

                                         10
                                 III. CONCLUSION.
      Because Campbell's will was not overborne during his various

discussions with police, the trial court did not err in denying Campbell's

motion to suppress. We affirm the judgment.

      All sitting. All concur.




                                       11
COUNSEL FOR APPELLANT:

Julia Karol Pearson
Kathleen Kallaher Schmidt
Assistant Public Advocates


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

Heather Michelle Fryman
Assistant Attorney General




                               12
