By Jeremy D. Wells
Carter County Times
Attorney for Johnny Tolliver, Robert Miller contends that an interview with his client conducted by detectives with the Kentucky State Police (KSP) should be inadmissible as evidence because the detectives ignored Tolliver’s clear request for an attorney. The detectives, however, state that they gave Tolliver several opportunities to unequivocally invoke his right to an attorney – including reading him his Miranda Rights – after explaining to him that they were there to discuss a new set of allegations.
In recordings played in court last Friday, Tolliver, who was already incarcerated on a charge of second degree assault, can be heard entering an administrative room where KSP detectives David Foreman and Josh Lawson are waiting for him, before stating he should probably have his attorney present. Foreman can then be heard telling him that he has the right to have his attorney present, but that before that he wanted Tolliver to be aware that he was not present to discuss the assault case he was incarcerated for, but a new case.
Foreman testified that he felt Tolliver’s initial invocation was a reflexive action because he, “knew he (Tolliver) was familiar with the criminal justice system.” He said he also felt Tolliver might be invoking an attorney he had retained or been assigned to in that case, rather than any attorney that might be retained or assigned for the new case.
Foreman also said that Tolliver acknowledged and waived his Miranda Rights – a statement which drew visible protestation, in the form of an aggressive head shake of “no” from Tolliver.
When questioned by Miller, Foreman didn’t deny that one of the first things Tolliver did was ask for an attorney. However, he said that the tape needed to be listened to in its entirety and in context to recognize that Tolliver was given further opportunities to invoke his rights before discussing the new allegations against him. This was a point Judge Rebecca Phillips seemed to agree with, indicating that she would need to listen to the full tape before rendering judgement on the suppression of the interview. Commonwealth attorney Brandon Ison made a motion, enjoined by Miller, to introduce the entire recording into evidence.
Foreman also acknowledged that at one point in the interview he told Tolliver that the evidence they had against him was, “so overwhelming, it won’t matter if you decide to speak to us or not.” But he said he didn’t think he asked Tolliver any questions relating to the allegations until after reading him his rights, “because I wanted this to be totally legal,” noting that his intent was not “to be coercive” but to inform Tolliver of the charges against him.
Those charges – which include 16 counts of use of a minor under 16 in a sexual performance, 16 counts of possessing or viewing matter portraying a sexual performance by a minor, 13 counts of first degree sexual abuse of a victim under 12 years of age, and one count of first degree sexual abuse – were based on evidence found on a cell phone belonging to Tolliver.
Miller next questioned Sgt. Lawson regarding evidence from the search of the phone, which he was also seeking to suppress. Miller asked Lawson if he had looked at any of the photos or video evidence on the phone prior to obtaining a search warrant, and the former detective testified that he had not. As Lawson explained it, at some point after Tolliver was jailed on assault charges two other uniformed KSP officers were called to a residence where Tolliver’s then girlfriend lived. She showed at least one of the reporting officers some of the disturbing images she’d found on Tolliver’s phone before surrendering it to the officers. Lawson said they placed the phone in evidence, filed the required reports, and that he did not view it until after they had obtained a search warrant.
Those two officers, Hartsell and Sparks, had not been subpoenaed for the suppression hearing and so were not able to testify directly, and Lawson said he was not aware if they had viewed the images beyond what Tolliver’s girlfriend showed Officer Sparks before he asked if she would be willing to surrender the phone. Lawson’s testimony indicated that the phone did contain images of children being exploited. Miller also asked if Lawson believed those were actual images of exploitation, and not “dramatic” or staged images, and Lawson said the photos appeared to depict actual acts.
Miller had also subpoenaed the mother of one of the victims in this case, but failed to call her to testify after hearing Lawson’s testimony about custody of the phone. This action drew a brief admonition from Judge Phillips, who warned Miller that excluding the mother from the proceedings, on grounds that she might testify as a witness, and then failing to call her put the court at risk of violating the victim’s rights under Marsy’s Law. Kentucky’s victims’ rights legislation guarantees victims certain constitutional rights, including timely notice of any proceedings, and the opportunity to be present at and heard in all such proceedings, amongst other rights.
The judge didn’t make any rulings on the requests for suppression at the time of the hearing.
In other action in Phillips’ courtroom on Friday, Kimberly Blevins was sentenced on charges of third degree sodomy and first degree sexual abuse. Blevins had previously entered an Alford plea of guilty to a single count of each charge, with the Commonwealth dismissing a second sodomy charge and three other counts of sexual abuse. She was sentenced to five years of conditional discharge, under the supervision of a probation officer, and ordered to undergo sex offender treatment. In addition, she will be required to have her name recorded on the sexual offender registry for the rest of her lifetime. She was ordered to surrender herself at the detention center by November 18, and advised not to try to remove her ankle monitor device herself, but to wait for law enforcement to do so. If she reoffends or violates any terms of her agreement within the five year period of her probation she will have to serve the full remainder of her sentence. She was also ordered to have no contact with the victim or his family.
“Remember,” Phillips advised her before dismissing Blevins, “the registration obligation is forever.”
Phillips also accepted a change of plea from Anthony Garvin, who was sentenced to a total of eight years on numerous trafficking charges. Garvin was sentenced to six months on a charge of trafficking in less than eight ounces of marijuana, and eight years each on three other cases of trafficking in heroin. The eight years sentenced in the other cases will all run concurrently, as will the six months, for a total sentence of eight years. Garvin must serve at least four years of his sentence before becoming eligible for parole.
James Wolfe also entered a change of plea on his trafficking and organized crime charges, with his charge of trafficking in methamphetamine reduced to possession – which carries a penalty of one to three years – and charges of engaging in an organized criminal syndicate dismissed. Wolfe will remain in custody until a bed is available in a treatment program.
Contact the writer at editor@cartercountytimes.com
