DANIEL LEE STIDHAM APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

DANIEL LEE STIDHAM APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–001412–MR

Decided: May 04, 2012

BEFORE:  MOORE, NICKELL AND THOMPSON, JUDGES. BRIEFS FOR APPELLANT:  Samuel N. Potter Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Daniel Lee Stidham appeals from a Fayette Circuit Court's judgment of conviction following a jury trial on the charges of second-degree criminal possession of a forged instrument and being a persistent felony offender in the second degree (PFO–II).   For the reasons stated, we affirm.

On October 20, 2008, Stidham approached Bill McClure, who was working in his daughter's yard in Nicholasville, Kentucky, and offered to sell him some meat from his refrigerated truck for Country Choice Meats.   McClure purchased some meat and wrote Stidham a check for $126.   Several days later, McClure's wife discovered that a check for $426 had been drawn against the parties' account.   When she reviewed a copy of the check, she believed that it had been altered.

Upon learning of the alteration, McClure went to the bank, filled out an alteration of check affidavit, and filed a police report.   Lexington Police Detective Gene Haynes investigated the case and observed that the word “four” had been written over the word “one” where the check amount is written.   The number “1” was altered to be number “4” where the check amount is in numbers.

Detective Haynes then contacted Stidham's employer and went to its office building to conduct an interview with Stidham.   The police interview was conducted in a manager's office and lasted approximately thirty minutes.   Initially denying responsibility, Stidham eventually confessed to the alteration.   He stated that he altered the check in Nicholasville and cashed it in Lexington.   After providing a written confession, Stidham was arrested.

On April 14, 2009, a Fayette County grand jury indicted Stidham for criminal possession of a forged instrument in the second degree and being a PFO–II.   Stidham filed a motion to suppress arguing that he did not receive a Miranda warning and that his confession was coerced.   After a hearing, the trial court ruled that Stidham knowingly and voluntarily waived his Miranda rights and that his confession was not coerced.

At trial, the McClures testified regarding the events leading up to them calling police about the altered check.   Mr. McClure testified that Stidham had called him, admitted to the alteration, and asked him to drop the criminal charges.   Mrs. McClure testified that Stidham called her and offered her $2,000 to drop his charges.   Craig Walker, an employee of Country Choice Meats, testified that Stidham confessed to him after the arrest and promised to repay the company.

Stidham testified in his own defense that he did not alter the check and that he only confessed because the detective pressured him for thirty minutes.   He testified that he did not know what else to do because the detective told him that he would “do time” if he did not confess.   Stidham further testified that he did not call the McClures or Walker and confess to forging the check.

At the close of the case, the jury found Stidham guilty of second-degree criminal possession of a forged instrument and of being a PFO–II.   In accordance to the jury's recommendation, the trial court sentenced Stidham to five-years' imprisonment by virtue of his PFO–II conviction but probated his sentence for a four-year period.

Stidham contends that his confession should have been suppressed because it was the product of coercion and deception.   He argues that Detective Haynes's assertion of pressure and deception rendered his confession involuntary because it deprived him of the ability to make a statement based on his own will.

On appellate review of a trial court's denial of a motion to suppress, we apply the two-step process adopted in Adcock v. Commonwealth, 967 S.W.2d 6 (Ky.1998).   First, we review the trial court's findings of fact under a clearly erroneous standard.  Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.2004).   Under this standard, the trial court's findings of fact will be conclusive if they are supported by substantial evidence.  Drake v. Commonwealth, 222 S.W.3d 254, 256 (Ky.App.2007).   We then conduct a de novo review of the trial court's application of the law to the facts to determine whether its ruling was correct as a matter of law.  Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App.2002).

The voluntariness of a confession is based on the totality of the circumstances surrounding the making of a confession.  Walker v. Commonwealth, 561 S.W.2d 656, 659 (Ky.1977).   Under the U.S. and Kentucky Constitutions, voluntariness of a confession turns on the presence or absence of coercive police conduct.  Id. While deception by police is a factor to be considered, it must be balanced against all the other circumstances surrounding the confession.  Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).

Our Supreme Court has held that the relevant inquiry to determine voluntariness is:  (1) whether the police's conduct was “objectively coercive;” (2) whether the coercion overbore the defendant's will;  and (3) whether the defendant showed that the coercive police conduct was the “crucial motivating factor” behind his confession.  Bailey v. Commonwealth, 194 S.W.3d 296, 301 (Ky.2006).

Stidham argues that Detective Haynes's threats of punishment and false statements of leniency if Stidham told the truth were coercive.   He argues that he was surprised to be interrogated at his workplace at 9 a.m. He further argues that Detective Haynes's use of expletives and calling him a liar created undue pressure on him and led to him making an involuntary confession.

Before beginning his interview, Detective Haynes informed Stidham of his Miranda rights, including the right to remain silent.   Stidham affirmed that he understood his rights.   Detective Haynes then asked Stidham about the altered check.   Stidham stated that he did not alter the check and that he was not the kind of person who would alter a check.   Stidham then stated that he had been in trouble in the past but that his brother's death had motivated him to leave his life of crime.

After Stidham continued talking, Detective Haynes told Stidham to “cut the crap” and that no judge or jury would believe him.   Stidham responded that the detective could not put this charge on him.   Detective Haynes told Stidham to lower his voice or that he would be taken downtown in handcuffs to continue the discussion.   He further told Stidham that he could talk louder than Stidham and that Stidham did not desire this result.   Stidham then agreed to talk in a lower voice.

Stidham continued denying altering the check but stated that his trainee that day may have altered the check.   Stidham then offered Detective Haynes $200 of the $300 in misappropriated funds.   This offer was rejected.   Stidham then began calling someone for the name of the trainee that was riding with him on the day that he received the check.   After the call was unsuccessful, Detective Haynes told Stidham that he would arrest Stidham and send him to prison if the trainee did not accept responsibility for the forgery, because Stidham would not “man up” and accept responsibility for his mistakes.

After further discussion, Detective Haynes told Stidham that he would send him to prison for five years if he did not tell the truth.   He then told Stidham to sit down and hang up the telephone.   Detective Haynes told Stidham that he had one last opportunity to tell the truth.   He told Stidham that the last person to lie to him about a forgery received a felony, but the last person to admit to a forgery received a misdemeanor.   Detective Haynes told Smith that he would work hard to ensure that Stidham received a harsher sentence if he did not confess.   Stidham then confessed to altering the check because of his money problems.

After reviewing the record, we conclude that the trial court properly ruled that Stidham's confession was not coerced but was voluntarily given.   While Stidham states that his confession was coerced by deception and threats by police, the mere use of ruses and strategic deception will not render a confession involuntary unless the ploy rises to the level of compulsion or coercion.  Springer v. Commonwealth, 998 S.W.2d 439, 447 (Ky.1999).   Under the totality of the circumstances, Detective Haynes's conduct did not overbear Stidham's will and constitute the “crucial motivating factor” behind Stidham's confession.   Therefore, Stidham's federal and state constitutional rights were not violated.

Stidham argues that the trial court denied him the right to present a meaningful defense by preventing him from playing the tape of his interrogation to the jury so that they could observe the harshness of the environment in which he confessed.   Citing Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), Stidham argues that he was denied the right to put on a complete defense by impeaching the credibility of his confession to police.

Notwithstanding Stidham's argument, he did not present this issue in the trial court when the audiotape of his confession was excluded.   Rather, Stidham filed a motion in limine pursuant to KRE 1 106, commonly called the “rule of completeness,” to admit the entire recording of his confession so that he could put his confession into the proper context to prevent the jury from being misled.   After the Commonwealth stated it would not play any portion of the recording, the trial court denied Stidham's request because the confession on the tape was hearsay.

On appeal, Stidham abandons his argument to the trial court by failing to mention KRE 106 or its commonly referenced name, the rule of completeness.   In place of his original argument, Stidham asserts to this Court a completely new theory of trial court error.   However, an appellate court is not authorized to review issues not raised in or decided by the trial court.  Dever v. Commonwealth, 300 S.W.3d 198, 202 (Ky.App.2009).   Accordingly, we conclude that Stidham's claim of error is unpreserved and that the trial court's ruling was not erroneous.

For the foregoing reasons, we affirm the Fayette Circuit Court's judgment of conviction following a jury verdict.

ALL CONCUR.

THOMPSON, JUDGE: