NOT TO BE PUBLISHEDOPINIC3N

THIS OPINION IS DESIGNATED "NOT TO BE

PUBLISHED. ." PURSUANT TO THE RULES OF
CIVIL PR OCEDURE PR OHUL GATED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE .PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITYINANY OTHER
CASE INANY COURT (1E THIS STATE.
 RENDERED : AUGUST 24, 2006
NOT TO BE PUBLISHED

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2004-SC-0601-MR

RICO LYVERS

APPEAL FROM FAYETTE CIRCUIT COURT

HON. REBECCA M . OVERSTREET, JUDGE
NO. 03-CR-1125

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

I. INTRODUCTION

Appellant, Rico Lyvers, was convicted of two counts of first-degree robbery and

for being a persistent felony offender in the first degree, and was sentenced to forty

years in prison . He appeals to this Court as a matter of right, alleging two trial errors :

(1) that the trial court erroneously admitted evidence obtained as the result of an

unconstitutional arrest, and (2) that the trial court abused its discretion by altering the

jury's recommended sentence. We affirm.

II. BACKGOUND

Appellant was found guilty of robbing Kimberly Cole and Deanna Bradley.

Bradley is a detective with the Lexington Police Department, but she was off-duty at the

time of the robbery . On the evening of August 17, 2003, Cole and Bradley returned to

their apartment parking lot after having visited the grocery store. As they exited their
 vehicle, Appellant approached the passenger side door. Standing in the gap created by

the open door, Appellant put a screwdriver to Cole's throat and demanded money from

the women . Bradley identified herself as a police officer, but Appellant continued to

threaten them . After collecting their wallets, Appellant ran to a car waiting at the

opposite end of the parking lot. Bradley remembered that she had seen the same car in

the lot before she and Cole left for the grocery, and that two men in the car were

arguing at the time .

The women followed the car, with Bradley driving while Cole called 911 . As they

pursued the car, Bradley and Cole noticed that the occupants threw something, later

found to be receipts from Cole's wallet, out the passenger side window of the vehicle.

Finally, the car stopped, and Appellant exited and fled on foot. The driver, however,

stayed with the vehicle and motioned for Bradley to come over. Bradley again identified

herself as a police officer and informed the driver that additional officers were on the

way. The driver then walked into a nearby apartment just as additional police officers

arrived on the scene.

A woman came out of the apartment and identified the driver of the vehicle as

her boyfriend, Rodriguez Lyvers. She also identified the robber as Appellant,

Rodriguez's brother. Rodriguez was then apprehended and agreed to lead police to

Appellant's apartment . When they arrived, the police convinced Rodriguez to try to

draw Appellant out of the apartment by knocking alternately on the door and the rear

bedroom window . Appellant eventually opened the rear window and leaned out to look

around . At this time, officers on both sides of the window pulled Appellant out of the

apartment and placed him under arrest. Bradley identified Appellant as the perpetrator.
 Officers then entered Appellant's apartment through the open window to perform

a protective sweep. They confiscated a shirt that was similar to that described by Cole

and Bradley . Appellant was then taken to the police station, booked, and interrogated

by Detective Albert Johnson . Appellant stated that he could only remember parts of the

evening because he had been drinking heavily, and that he had no recollection

whatsoever of a robbery.

Four days later, while still in jail, Appellant asked a guard to summon Detective

Johnson. When Detective Johnson arrived, Appellant indicated that he would be willing

to "make a deal" in exchange for a truthful statement. During this interview, Appellant

admitted that he had robbed the two women, but again claimed that he could not

remember the details of the evening due to his intoxication .

Appellant was indicted on two counts of robbery and for being a first-degree

persistent felony offender (PFO). He was tried and found guilty on all counts. The jury

recommended a sentence of ten years for each robbery count, to be enhanced to

twenty years under the PFO finding . The judge accepted the jury's recommended

sentences, but ordered that they be served consecutively, for a total of forty years in

prison . Appellant now enters this appeal as a matter of right. Ky. Const. § 110(2)(b) .

III. ANALYSIS

A. SUPPRESSION OF EVIDENCE

Appellant's first allegation of error is that the trial court failed to suppress

statements he made to the police and physical evidence seized at his apartment, all of

which were later admitted at trial by the Commonwealth . Specifically, Appellant

challenges the introduction of the statement given at the police station shortly after his
 arrest, the more incriminating statement made four days later, and the shirt taken from

his bedroom at the time of the arrest.

Prior to trial, Appellant moved to suppress all three pieces of evidence, asserting

that his warrantless arrest inside his home was unconstitutional and, therefore, that all

fruits of the arrest were inadmissible . Following a hearing, the trial court overruled the

motion, first determining that Appellant had placed himself in a public place by leaning

his upper body out of the apartment window. The trial court then concluded that, once

outside the home, the police had the requisite probable cause to make a warrantless

felony arrest. We note that Appellant asserts that the arrest was unlawful only because

it was made in his home without a warrant; he does not argue that police lacked

probable cause. Without expressly determining whether the manner of Appellant's

arrest violated the Fourth Amendment, we conclude that no reversible error occurred in

the admission of this evidence.

We first consider Appellant's statements to police. In Payton v. New York, 445

U .S. 573, 100 S.Ct. 1371 (1980), the U.S . Supreme Court held that the Fourth

Amendment prohibits the police from effecting a warrantless and nonconsensual entry

into a suspect's home to make a routine felony arrest, and that fruits of such an arrest

must be suppressed . The Court later limited the exclusionary rule created in Pa on:

"Nothing in the reasoning of Pa on suggests that an arrest in a home without a

warrant but with probable cause somehow renders unlawful continued custody of the

suspect once he is removed from the house." New York v. Harris, 495 U.S . 14, 18, 110

S.Ct. 1640, 1643 (1990). Thus, evidence that is the direct fruit of the illegal arrest is

inadmissible, while evidence that is not a product of the unlawful entry is admissible:

"[W]e decline to apply the exclusionary rule in this context because the rule in Pa on
was designed to protect the physical integrity of the home ; it was not intended to grant

criminal suspects . . . protection for statements made outside their premises where the

police have probable cause to arrest the suspect for committing a crime ." Id . at 17, 110

S.Ct. at 1643. Accordingly, in Harris, though the defendant was unlawfully arrested in

his home, his statement was nonetheless admissible because it was made several

hours after the arrest at the police station and could not be considered the product of

the unlawful entry.

The present matter is analogous, and therefore we need not specifically analyze

the legality of the arrest to conclude that Appellant's statements were admissible . Even

assuming arguendo that Appellant was pulled unlawfully from his home through the

window, his continued detention outside the apartment was not improper . Id . at 18, 110

S.Ct. at 1643 ("Nor is there any claim that the warrantless arrest required the police to

release Harris or that Harris could not be immediately rearrested if momentarily

released . Because the officers had probable cause to arrest Harris for a crime, Harris

was not unlawfully in custody when he was removed to the station house, given

Miranda warnings, and allowed to talk."). When Appellant gave his initial statement to

police, he did so at the police station some three hours after the arrest. As in Harris, the

statement cannot be considered the product of unlawful custody. Id. at 19, 110 S.Ct . at

1644 ("Harris' statement taken at the police station was not the product of being in

unlawful custody . Neither was it the fruit of having been arrested in the home rather

than someplace else ."). Appellant's second statement, in which he admitted to the

crime, was made four days after the arrest. We also note that Appellant personally

summoned the investigating officer to the jail for the express purpose of giving a more

detailed and truthful statement in exchange for prosecutorial leniency . It is plain that
 neither statement was obtained through an exploitation of the entry into Appellant's

home, even assuming that such entry was unlawful .

Appellant also challenges the admission of a shirt seized from his bedroom at the

time of his arrest. After Appellant was pulled from the window and arrested, the officers

conducted a protective sweep of the apartment and seized a shirt that fit the description

of that worn by the perpetrator. The shirt was introduced at trial and identified by

Bradley as matching that worn by the robber. Appellant argues that the illegal arrest

rendered the protective sweep unlawful, and therefore the shirt was inadmissible as fruit

of the invalid arrest.

Again, we need not directly consider the legality of the arrest to conclude that

reversible error has not occurred . Even if the shirt was obtained during a search

incident to an unlawful arrest, its admission was nonetheless harmless. Errors in the

admission of evidence that do not affect the substantial rights of a criminal defendant

are disregarded . RCr 9.24. In considering whether an error is sufficiently prejudicial to

warrant reversal, we examine the entire case and determine whether "there is a

substantial possibility that the result would have been any different" absent the error.

Commonwealth v. McIntosh, 646 S .W.2d 43,45 (Ky. 1983) .

Here, while the shirt was introduced for purposes of identifying Appellant as the

perpetrator, it was certainly not critical to the Commonwealth's case and, furthermore, it

was merely cumulative of more persuasive evidence. Appellant was identified by

Bradley during a "show-up" identification at his apartment. Both Bradley and Cole again

identified him as the perpetrator at trial . Cole identified the receipts that were thrown

from the passenger side of Appellant's "get-away" vehicle as hers . Most importantly,

Appellant admitted to police that he had robbed the women. In light of the volume of
evidence indicating Appellant's guilt, we cannot find any substantial possibility that the

result would have been any different absent admission of the shirt. Thus, any error in

the admission of the shirt was harmless.

B. SENTENCING

Appellant's second allegation of error is that the trial court abused its discretion

by ordering his sentences to run consecutively, though the jury had recommended

concurrent sentences. Appellant acknowledges that this issue is not preserved for

review. However, citing Gather v . Commonwealth, 963 S.W.2d 621 (Ky. 1997),

Appellant argues that an illegal sentence can be challenged absent preservation

because the error is jurisdictional . Alternatively, Appellant requests palpable error

review pursuant to RCr.10 .26.

According to Appellant, the trial court improperly considered Bradley's victim

impact statement when deciding to run the sentences consecutively . At the end of this

statement, while urging the court to impose a severe penalty, Bradley wrote : "I spoke

with a juror after the trial and she related that the other jurors were confused about the

sentencing and they thought Mr. Lyvers was receiving a sentence of 40 years, (20 and

20 consecutive)." At sentencing, the trial court stated that it had read and considered

the victim impact statement, the nature of the crime, and a letter submitted by Appellant,

but did not mention Bradley's claim that the jury had been confused .

Appellant's assertion that the sentence is illegal is unfounded . The sentence

conformed completely with applicable statutory provisions . See KRS 532 .1 10(l). In

addition, we reiterate that the trial court is under no obligation to adopt the sentence

recommended by the jury, and has the discretion to run sentences concurrently or
 consecutively . Dotson v. Commonwealth, 740 S.W.2d 930, 932 (Ky. 1987) ; Wombles v.

Commonwealth , 831 S.W.2d 172,176 (Ky. 1992).

We likewise find no palpable error warranting a new sentencing hearing .

Appellant provides numerous reasons why Bradley's claim that the jury was confused

would be highly prejudicial and improper. However, there is no evidence in the record

indicating that the trial court did, in fact, rely on this portion of the impact statement in

ordering consecutive sentences . Furthermore, there is no indication that Bradley's

claim was even true : the jury instructions provided at sentencing clearly distinguished

consecutive and concurrent sentences in simple terms and, absent an indication

otherwise, we must presume that the jurors understood the instructions . In short,

Appellant's claim that the trial court considered an improper victim impact statement is

merely speculation . This type of conjecture is insufficient to warrant reversal on the

basis of manifest injustice, as it fails to establish the requisite substantial possibility that

the trial judge would have adopted the jury-recommended sentence absent the

information contained in the victim impact statement. See Kinser v. Commonwealth,

741 S.W.2d 648, 653 (Ky. 1987), habeas -granted sub nom. on other grounds, Vincent v.

Parke, 942 F .2d 989 (6th Cir.1991) ("No conclusion of prejudice . . . can be supported

by mere speculation .").

IV. CONCLUSION

For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed .

All concur.
COUNSEL FOR APPELLANT:

Randall L . Wheeler
Assistant Public Advocate
100 Fair Oaks Lane
Suite 302
Frankfort, Kentucky 40601

COUNSEL FOR APPELLEE:

Gregory D. Stumbo
Attorney General

Todd D. Ferguson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204