O'Neal v. Commonwealth

DIXON, JUDGE

NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NOS. 13-CR-000990 AND 13-CR-002749 OPINION
AFFIRMING
BEFORE: DIXON, NICKELL, AND TAYLOR, JUDGES. DIXON, JUDGE: Appellant, Anthony O'Neal, appeals from the judgment of the Jefferson Circuit Court convicting him of possession of a handgun by a convicted felon and of being a second-degree persistent felony offender. Appellant contends the circuit court erred by denying his pretrial motion to suppress evidence, and he also contends the court erred by rejecting his tendered jury instruction. After careful review, we affirm.

Louisville Police Detectives Spaulding and King received information that Cameron Adkins, who had outstanding felony warrants, was at a residence located at 1776 Wilson Avenue. As the officers parked on the street, they saw Adkins, who had been standing on the front porch, enter the house. The officers called for back-up and Detective Spaulding knocked on the front door. Appellant opened the blinds of a large window next to the door, which allowed the detective to see a black handgun resting on a white fireplace mantle in an unfurnished room. Appellant opened the door, and Detective Spaulding advised him the officers had just seen Adkins and that she had felony warrants. Appellant allowed the officers to enter the house to apprehend Adkins. Detective Spaulding remained near the front door and asked Appellant if the gun belonged to him. Appellant stated, "Yeah," and Detective Spaulding then asked if Appellant was a convicted felon. Appellant again answered affirmatively.

Ultimately, Adkins and Megan Bruce were located in a bedroom, and Detective King found Michael Simpson hiding in the basement. All of the occupants were brought to the front room where Appellant was sitting. At that point, the officers began checking everyone's identification to determine if there were other outstanding warrants, and they received confirmation that Appellant was a convicted felon. Appellant was subsequently arrested and charged with possession of a handgun by a convicted felon and for being a persistent felony offender. Prior to trial, Appellant moved to suppress his statements to Detective Spaulding as the product of an un-Mirandized custodial interrogation. The Commonwealth presented testimony at the suppression hearing from Detectives Spaulding and King, and the trial court issued a written order denying the motion. Following a jury trial, Appellant was convicted of possession of a handgun by a convicted felon and being a second-degree persistent felony offender. This appeal followed.

When this Court reviews a determination on a motion to suppress evidence, we are bound by the factual findings of the trial court if they are supported by substantial evidence. Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998), citing Kentucky Rules of Criminal Procedure (RCr) 9.78. We then review de novo the application of the law to the facts. Id.

Appellant contends his statements regarding the gun and his status as a convicted felon were the product of an un-Mirandized custodial interrogation and should have been suppressed. Appellant concedes that Detective Spaulding did not handcuff him or otherwise restrict his freedom of movement; however, Appellant emphasizes that Detective Spaulding failed to tell Appellant he was free to leave.

In Commonwealth v. Lucas, 195 S.W.3d 403, 405-06 (Ky. 2006), the Kentucky Supreme Court explained:

Miranda warnings are required only where there has been such a restriction on the freedom of an individual as to render him in custody. . . . Custody does not occur until police, by some form of physical force or show of
authority, have restrained the liberty of an individual. The test is whether, considering the surrounding circumstances, a reasonable person would have believed he or she was free to leave. Some of the factors that demonstrate a seizure or custody have occurred are the threatening presence of several officers, physical touching of the person, or use of a tone or language that might compel compliance with the request of the police.

Under the circumstances presented here, we simply cannot conclude that Appellant was "in custody" when Detective Spaulding asked him about the gun. Appellant consented to the entry of the residence by the police officers. Detective Spaulding testified that Appellant was in good spirits and remained in the living room. Detective Spaulding was lawfully present inside the house, and he posed questions to Appellant, which Appellant answered. There is no evidence of physical intimidation, coercion, threatening behavior, or restraint of movement that would indicate Appellant was "in custody" for the purpose of Miranda. After reviewing the record, we conclude Appellant's constitutional rights were not infringed; consequently, the trial court properly denied the motion to suppress evidence.

Appellant next contends the court committed reversible error by denying his request to instruct the jury on facilitation to possession of a firearm by a convicted felon.

Kentucky Revised Statutes 506.080(1) codifies facilitation:
A person is guilty of criminal facilitation when, acting with knowledge that another person is committing or
intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime.

Appellant testified at trial and denied owning the gun. He further opined that he never saw anyone in the house with a gun and that he did not know the gun was on the mantle. The Commonwealth's evidence included Appellant's statement to Detective Spaulding claiming ownership of the gun. The jury was presented with two alternatives, weighing Appellant's testimony denying all knowledge of the gun against Appellant's previous admission to the detective that he owned the gun. There was no evidence to support a facilitation instruction; accordingly, the trial court properly denied Appellant's request.

For the reasons stated herein, we affirm the judgment of the Jefferson Circuit Court.

ALL CONCUR. BRIEFS FOR APPELLANT: Joshua M. Reho
Office of the Louisville Metro Public
Defender
Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky