LEAWOOD — A statement from the man charged with killing a suburban Kansas City woman at a Leawood pool in 2002 can be used in his trial, a judge ruled Monday.
Benjamin Appleby, 30, is charged with capital murder and attempted rape in the death of Ali Kemp, 19, at a swimming pool where she worked.
Johnson County District Judge Steve Leben on Monday rejected a defense request to suppress the statement Appleby gave to Leawood police after his arrest in Connecticut in November 2004 on an unrelated warrant.
During his processing on that arrest, Appleby asked several times about a lawyer, according to testimony at a hearing in May.
A Connecticut officer testified that he told Appleby he could speak to a lawyer after the processing was complete. The officer then asked Appleby whether he would talk to "some people about an unrelated matter."
Leawood officers who had flown to Connecticut read Appleby his Miranda rights and questioned him for more than two hours about Kemp's killing.
At no point during the questioning by Leawood officers did Appleby indicate that he wanted an attorney, Leben said Monday.
Appleby's attorney had argued that because Appleby had previously asked about an attorney, the statements he later gave about Kemp's killing violated his constitutional rights and should be thrown out. He also argued that Leawood police, who had spoken to Appleby in 2003, were aware then that he had an attorney.
Appleby's preliminary hearing is scheduled Sept. 28 in Johnson County District Court.
Comments
Baille 11 years ago
Hey, Ladylaw. Appleby's attorney is correct, isn't he?
Appleby was in police custody when he asserted his Fifth amendnment right to counsel. Once that right is invoked police are prohibited from all further interrogation efforts regarding all crimes absent Appleby inititiating conversation or unless his attorney is present. This "unrelated matter" crap is only relevant if Appleby had invoked his right to counsel under the Sixth Amendment.
avhjmlk 11 years ago
I'm not sure that the Fifth amendment applies here at all. The fifth amendment is one's right not to incriminate himself. If Appelby had invoked the 5th Amendment, he would have been choosing not to speak. If someone invokes the 5th amendment, you can keep asking them questions, but they will continue to respond that they are invoking their 5th amendment privilege.
The 6th amendment is the only one that applies to the right to counsel.
Baille 11 years ago
That's not right at all. There is a Fifth Amendment right to counsel as well. Look at Edwards v. Arizona, 451 US 477, where it was held "that a suspect who has "expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication." "
This Rule was applied interrogations regarding other matters as well in Arizona v. Roberson, 486 US 675: "The Edwards rule applies to bar police-initiated interrogation following a suspect's request for counsel in the context of a separate investigation."
As for the right to remain silent, once that is invoked the police can't keep asking questions on that matter. "Once a warned suspect 'indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.'"
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