IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 91,755
STATE OF KANSAS,
Appellee,
v.
WORD ACKWARD, JR.,
Appellant.
SYLLABUS BY THE COURT
1. In reviewing a district court's decision regarding suppression, this court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.
2. In determining whether a confession is voluntary, a court considers the totality of the circumstances. Factors bearing on the voluntariness of an accused's statement include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused.
3. Under the inevitable discovery doctrine, the prosecution may use evidence it obtained illegally but would have obtained legally in any event. The rationale is that punishment for an act that does no harm is not required in order to deter harmful acts. Kansas courts apply the inevitable discovery exception to the exclusionary rule.
4. The inevitable discovery doctrine requires that the inevitable discovery be lawful. The inevitable discovery of the challenged evidence by unlawful means does not render it admissible.
5. Our legislature has included the possession of marijuana as an inherently dangerous felony and although not all items found on the inherently dangerous felony list are included as forcible felonies, we hold that, under the specific facts of this case, attempted possession of marijuana is a forcible felony as contemplated by K.S.A. 2004 Supp. 21-3110(8).
6. Under the facts of this case, the district court did not err in instructing the jury on the felony-murder charge that a person is not justified in using force in defense of oneself while attempting to possess marijuana with intent to sell.
7. The trial court has broad discretion regarding the admission of photographs, including discretion to exclude photographs if their probative value is substantially outweighed by the risk of unfair prejudice.
8. Because only the district court is in a position to view the demeanor of prospective jurors during voir dire, a district court's ruling on a challenge for cause will not be disturbed on appeal unless it is clearly erroneous or amounts to an abuse of discretion.
9. Although a defendant may be forced to use a peremptory strike to get rid of a prospective juror, the mere loss of that peremptory strike does not constitute a violation of the constitutional right to an impartial jury.
10. Peremptory challenges are means to achieve the end of an impartial jury, and so long as the jury that ultimately sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean that the Sixth Amendment was violated.
11. Errors that do not affirmatively cause prejudice to the substantial rights of the defendant do not require reversal when substantial justice has been done.
Appeal from Shawnee district court; MATTHEW J. DOWD, judge. Opinion filed February 10, 2006. Affirmed.
Thomas W. Bartee, chief defender, NE Conflict Office, argued the cause, and Cory D. Riddle, deputy appellate defender, was on the brief for appellant.
Amy M. Memmer, assistant district attorney, argued the cause, and Robert D. Hecht, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, J.: Word Ackward, Jr. was convicted by a jury of one count of felony murder and one count of attempted possession of marijuana with intent to sell or distribute. He was sentenced to life imprisonment for felony murder and 14 months on the drug charge to run concurrently with the life sentence. He appeals his convictions.
Ackward raises the following issues, which we list in the order we will consider them.
1. WAS THERE SUBSTANTIAL COMPETENT EVIDENCE TO SUPPORT THE DISTRICT COURT'S DETERMINATION THAT ACKWARD'S STATEMENT TO POLICE WAS VOLUNTARY?
2. DID THE DISTRICT COURT ERR IN DENYING ACKWARD'S MOTION TO SUPPRESS THE GUN?
3. DID THE JURY INSTRUCTION ON SELF-DEFENSE PROPERLY AND FAIRLY STATE THE LAW AS APPLIED TO THE FACTS OF THE CASE?
4. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN ADMITTING A PHOTOGRAPH OF THE VICTIM?
5. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN REFUSING TO STRIKE TWO PROSPECTIVE JURORS FOR CAUSE?
6. DID CUMULATIVE ERRORS DEPRIVE ACKWARD OF A FAIR TRIAL?
Joshua Buckman died on February 12, 2003, as the result of a gunshot that entered his lower left back and damaged his liver, kidney, and right lung and caused extensive hemorrhaging before exiting from the right side of his chest. A second gunshot entered the outer aspect of his left upper arm and exited higher up on the inner part of the arm. Buckman bled to death, which gave him time to move some distance from where he was shot before losing consciousness.
Earlier that evening, Buckman, who lived in Ozawkie, stopped by the house of his friend, Nathan Wells, who lived in Meriden. They were bored and decided to drive Buckman's car to Topeka to look for something to do. At Buckman's request, Wells loaned him $100. Buckman drove. Wells uses a wheelchair and is able to drive only with hand controls.
As he was driving south on Topeka Boulevard, Buckman used Wells' cellular telephone to call friends and find something to do. At the Total station at 29th and Indiana, Buckman got some gasoline, checked the oil, and talked with someone interested in buying his car. Wells waited in Buckman's car. Buckman continued to make calls on Wells' telephone after they left the station.
When they had driven almost to Topeka Boulevard, Buckman turned around and headed back to the Total station. He told Wells he was going to meet his friends there. Buckman parked on the east side of the building. Wells' telephone rang. He did not recognize the number, but Buckman did, and he answered. After hanging up, Buckman told Wells that his friends were going to be pulling into the station soon and that he and Wells would follow them around to the apartments behind there.
Two males, who Wells did not recognize, drove into the station from south on Indiana in a gold Nissan Maxima with a temporary tag. Buckman said they were his friends and followed them. Buckman referred to one of the men as "Word."
When they got to the parking lot of a nearby apartment complex, the driver of the Nissan backed into a stall. Buckman pulled in next to the Nissan so that the drivers' sides of the two cars were closest together. Wells assumed they were going to be hanging out with some of Buckman's friends at the apartment complex, and he asked Buckman to make sure the wheelchair could get in. Buckman and the defendant, who was the Nissan driver, got out of their cars. Buckman and Ackward walked toward the apartments, and Wells lost sight of them.
Buckman had left his window down. The passenger in the Nissan rolled down its driver's side window. Wells did not know either the driver or the passenger of the Nissan. After a few minutes, Wells heard two gunshots, one right after the other. They sounded fairly close.
The Nissan passenger was Mario Oneal. Oneal slid over to the driver's seat and pointed a gun out the window at Wells. He told Wells to put his hands up and asked if he had any money. As Wells was saying that he did not have any money, the defendant came running toward the car with a gun in his hand. The defendant yelled, "I got money, I got money." Oneal, who had slid into the driver's seat, began pulling out of the stall as defendant jumped in the car. With squealing tires, they drove out of the apartment parking lot and north on Kentucky to 29th, where Wells lost sight of them. In the car, Ackward told Oneal that he and Buckman fought and Ackward shot Buckman twice.
Wells yelled at a woman who came out of the apartments, asking if she would look for his friend. Then he called 911. When police arrived, Wells told them what had happened and gave them the last telephone number from which Buckman had received a call.
Police found Buckman lying on the second floor landing. He had no weapons or money on or around him.
Police found a spent round on the second floor landing. In the third floor hallway, police found a blood smear on the baseboard, an undamaged bullet, an indentation in the wall, and blood on the fire door. The fire alarm on the third floor had been pulled. The bullets police found were 9 millimeter rounds. Two 9 millimeter shell casings were found outside the apartment building.
On the third floor, officers knocked on apartment doors to check on occupants. The manager provided a master key that provided access to apartments where no one responded. When there was no response at apartment 305, officers entered to look for other victims. On a table in the living room they saw a brick of green vegetation, a small scale, and more green vegetation in a bowl. It appeared to be marijuana. Police found no one in apartment 305. It was secured as a possible crime scene.
When Venus Triplett later arrived, it was determined that he lived in the apartment. Triplett testified that he did not know Ackward personally but that he knew of him. Triplett denied speaking to Ackward at any time on February 12, 2003. Triplett also denied knowing the name, Joshua Buckman.
We first consider whether Ackward's statement to police was voluntary.
The telephone number Wells gave police was traced to Word Ackward, Sr., and officers went to his house at approximately 3 a.m. on February 13 to question him. Ackward, Sr., told police that his son was carrying the phone. The father called his son, and then he gave the telephone to Detective Hill, who said he needed to talk to Ackward, Jr., about a shooting. Claiming to be in Wichita, defendant agreed to speak with police the next morning. The morning of February 13, defendant and his father went to the police station.
Before trial, defendant filed a motion to suppress his statement to police. He alleged that his statement was the product of coercive tactics by interrogating officers, including false information, religious appeals, and misrepresentation of the law. The trial court held a Jackson v. Denno hearing. In addition to the evidence presented at the hearing, the trial court reviewed a videotape of defendant's interrogation, a transcript of the videotape, and oral and written arguments of the parties. The trial court ruled as follows:
"1. The Court did not find that the statements made by the Defendant were involuntary.
"2. Specifically, the Court ruled that the defendant, though young, was able to converse with the detectives as a mature individual.
"3. The Court also found that although the time of interrogation was lengthy there were breaks and the Defendant did not appear to be under any real stress.
"4. In addition, the Court found that the religious arguments did not appear to have any effect on the Defendant.
"5. The Court found that the Defendant was not isolated from hi[s] family in that he had opportunities to speak with his father, and the threat of prosecuting his father for tampering with evidence was not significant in making the statement involuntary.
"6. The Court also found that the deceptive practices of the detectives including false evidence, fake witness testimony and misstatements about the law and the type of sentence he might be facing did not make the Defendant's statement involuntary.
"7. The Court did find that the Defendant's statement should be suppressed from the time he first inquired about receiving an attorney. The Court found that the 'request for the attorney is significant and conclusive,' and the Defendant made such a request eight times."
Thus, at trial the jury was not shown the entire videotape of defendant's interrogation. The portion of the interrogation that occurred after Ackward requested an attorney was edited out of the videotape that was admitted into evidence. On appeal, Ackward contends that statements he made to police during the admissible portion of the interrogation were involuntary and should have been suppressed because police used coercive tactics in eliciting them. On appeal, as in the trial court, Ackward complains the police improperly used false information, religious references, and misrepresentations of the law. In addition, he complains of false claims of contacts with the prosecuting attorney.
In reviewing a district court's decision regarding suppression, this court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005).
In determining whether a confession is voluntary, a court considers the totality of the circumstances. Factors bearing on the voluntariness of an accused's statement include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. 279 Kan. at 23-24.
Duration of the Interrogation
Defendant makes only one passing reference to the "prolonged nature of the questioning." Ackward does not urge the court to consider duration of the interrrogation as a significant factor bearing on the voluntariness of his statement. At the suppression hearing, the prosecuting attorney told the trial court that defendant spent about 8 1/2 hours with the interrogating detectives. Defendant testified that the interrogation lasted 8 or 9 hours. Defendant was given a number of breaks, and he was allowed to leave the interrogation room several times during the interrogation period, including to be driven to 1811 SW Lincoln in search of the gun.
Ability to Communicate with Outside World
Ackward has no complaint about being able to communicate with the outside world. He was allowed to keep his cell phone and telephoned his father and someone else several times while left alone in the interrogation room. In addition, when the defendant asked to speak with his father, the father came to the police station and was left alone with his son in the interrogation room.
Age, Intellect, and Background
Defendant was 20 years old. He did not graduate from high school. When writing out his statement, Ackward asked the officer how to spell "stay." Defendant also suggests that his telephone calls to his father show that he was scared and immature. The State points out that the trial judge's second finding was "that the defendant, though young, was able to converse with the detectives as a mature individual."
Fairness of the Officers in Conducting the Interrogation
(1) False information. Ackward complains that the police falsely told him a surveillance camera recorded him and Buckman at the Total station shortly before the shooting, his hands were being swabbed for a gunshot residue analysis that would show whether he had fired or even held a gun within 48 hours, there were multiple eyewitnesses at the apartment complex, another person was cooperating and had strong incentive to do so to avoid prison time, and a police report showed that defendant always carried a gun. At the suppression hearing, Detective Hill, who was the lead detective and conducted most of the interrogation, was asked about all these claims except the person who was cooperating to avoid prison time. Hill admitted the deceptions.
Defendant relies principally on Frazier v. Cupp, 394 U.S. 731, 739, 22 L. Ed. 2d 684, 89 S. Ct. 1420 (1969), in which the Supreme Court concluded: "The fact that the police misrepresented the statements that [defendant's cousin] had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible." In Swanigan, 279 Kan. 18, 31-32, this court considered the argument that repeated police use of false information overcame the defendant's will:
"In State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (1999), this court considered whether the defendant's statements were coerced when officers falsely represented that they had information and evidence implicating him in a murder. The district court found that although the detective lied in saying the defendant's fingerprints were upstairs, these were bluffs successfully used to convince him to make certain statements in response.
"In Wakefield, we observed that in Frazier v. Cupp, 394 U.S. 731, 22 L. Ed. 2d 684, 89 S. Ct. 1420 (1969), the United States Supreme Court held that a questioning officer's false statement to the defendant that the defendant's cousin had been brought in and confessed, when viewed as part of the totality of the circumstances, was insufficient to make the otherwise voluntary confession inadmissible. 267 Kan. at 128. Accordingly, we concluded, after reviewing the totality of the circumstances, that fingerprint misrepresentations to defendant Wakefield during the law enforcement interviews did not alone make his confession involuntary." 279 Kan. at 32.
But the court concluded that the repeated use of false information combined with Swanigan's low intelligence and susceptibility to being overcome by anxiety and police threats and promises constituted coercion that produced an involuntary statement. 279 Kan. at 39.
Ackward cites no good authority in which false information alone fatally tainted a defendant's statement to police. In addition to Frazier, he cites State v. Allies, 186 Mont. 99, 606 P.2d 1043 (1979), which has been overruled, and State v. Cochran, 72 Or. App. 499, 696 P.2d 1114 (1985). In Cochran, a police officer used a method of questioning a murder suspect that the court described as "an interview technique that he invented," 72 Or. App. at 505, and that technique generated much more discussion by the court than false information. The Oregon court concluded that the unorthodox interrogation technique, which seems to have convinced Cochran he had supernatural abilities, combined with other factors to overcome defendant's will. 72 Or. App. at 516. The other factors included: the officer's depreciating the seriousness of the interrogation and frustrating the purpose of the Miranda warnings by saying, "[I]f I thought you'd killed her, I wouldn't do this," and throwing the rights card defendant had signed into the wastebasket; the officer's promoting defendant's dependence on him by playing the good guy to another officer's bad guy; and subjecting defendant's hands to a contrived "black light analysis" and falsely telling him the glow indicated blood. 72 Or. App. at 512-15.
The State cites this court's decision in State v. Harris, 279 Kan. 163, 170, 105 P.3d 1258 (2005), where the court cited State v. Wakefield, 267 Kan. 116, 128, 977 P.2d 941 (1999), for the controlling principle that "[d]eceptive interrogation techniques alone do not establish coercion." The State also notes that in Swanigan the court stated: "[U]nder Wakefield Salina police were free to lie about evidence that fingerprints were found at the Kwik Shop and confirmed to be Swanigan's." 279 Kan. at 32. The court continued: "However, also under Wakefield, the false information must be viewed as a circumstance in conjunction with others, e.g., additional police interrogation tactics." 279 Kan. at 32.
(2) Religious references. The theme of religion was tied in by the police with defendant's relationship with his father. Among the officers' comments on religion are the following:
"I talked to your dad last night and he gave me the impression, he said he'd been going back to church and he was a little wilder when he was younger but he's got his life on track and stuff. But he's been trying to have you and your brother and stuff go to church and go that route and he knows you're out here in the streets running and doing whatever you're doing out here. This is pretty serious. In fact, this is damn serious. You know it. That's why you're down here. You still going on to church at all?"
"Q. . . . [W]hen was the last time you been to church?
"A. Last Sunday.
"Q. Okay. You know the deal, right? I mean, this is one world here but there's a whole other world you got to answer to."
"Okay. Now this stuff, you know, I mean this is biblical in the fact that you know anything that happens in the dark is going to be shown in the light, man. And you're going to have to do the right thing here and you're up against it. I mean, it's you doing the right thing or it's you getting hammered, man. So why don't I turn the page here and let's forget about this. Let's talk truthfully about what happened . . . ."
"Um, I'm about to the point where I've exhausted all my means to assist you. I think you're being kind of a hardhead at this point. That little voice we talked about out there that's talking to you though, see, because just like anything else in our life, you got that voice telling you and you know what it is because your daddy has got you in church, but it's telling you to do one thing but our minds, we want to do something else."
Defendant concedes that in State v. Cobb, 30 Kan. App. 2d 544, 559, 43 P.3d 855 (2002), an opinion written by now Justice Beier, the Court of Appeals did not find that the defendant's incriminating statements were involuntary in spite of "constant and pervasive" references to religion by the police. But Ackward would distinguish Cobb on the ground that Cobb was mature and invited the religious discussion. It is true that Ackward did not invite the religious discussion, but, as already noted, he was not of an especially tender age and the trial judge, who had the opportunity to observe defendant in person, perceived him as being mature. The State contrasts the constant and pervasive religious references in Cobb with the few brief mentions of religion in the present case. The religious references in the admissible portion of Ackward's interrogation are subtle compared with the fervid examples set out in the Cobb opinion. See 30 Kan. App. 2d at 550. The intensity of the religious talk in the present case grew significantly after Ackward said he wanted to talk with an attorney, but, because those statements were suppressed by the trial court, the heightened religious appeals are not at issue here. In the circumstances of this case, the officers' references to religion alone were not so coercive as to make Ackward's statement involuntary.
(3) Misrepresentations of the law. (a) Benefit from confessing. Defendant complains of Detective Hill's implying that a confession would get him more lenient treatment and a failure to confess would have negative repercussions. He does not quote specific language or cite to a specific time in the video. We assume the following statements by Hill are ones at issue:
"Okay. Well, you know there's a lot of ways to do stuff, okay, and if you wanted to talk to me all openly and honestly about everything that we are going to do here, then I'll do what I can do to help you out, okay? And there's a lot of ways these cookies can fall on the table, okay?"
"In this scenario, somebody is going to talk to us. Either you're going to talk to us or Trey is going to talk to us, okay, and somebody is going to be a fat puppy and get the breaks and the other cat ain't so, I mean, you haven't come up with an explanation as to why you guys were in that lot and I know you was there. I can put you guys in that lot in your car, okay, prior to this shooting. So you're either witnessing this thing or you're involved in it or you know something about it and you're scared, okay?
"And as soon as I get out of here, I'm going to go talk to these detectives here in about five minutes and I'll find out which one it is because they're talking to people. But if you wanted to talk to me now, this would be the time that I'm going to write something favorable in the report and I'm going to take your story, okay? . . . I mean, you keeping your mouth shut about just telling me part truth makes you look even guiltier than what you may be, you know what I mean, because I know more truth than what you're telling me. There's part of the story I don't have and that's what you can provide and that part of the story you provide me is the most important part. It's the part that actually gives you a break as far as maybe the court is concerned as to what your charges might be or not, man. Okay? It's the difference in a big sentence and a small sentence."
Defendant cites State v. Newfield, 229 Kan. 347, 359, 623 P.2d 1349 (1981) (quoting State v. Kornstett, 62 Kan. 221, 227, 61 Pac. 805 [1900]): "'It is well settled that an extrajudicial confession will not be received in evidence unless it has been freely and voluntarily made. If it has been extorted by fear or induced by hope of profit, benefit, or amelioration, it will be excluded as involuntary.'"
The State directs the court's attention to Swanigan, but the subject in that case was not an implied benefit from confessing but rather an implied or express detriment from defendant's lack of cooperation, which may amount to suggesting to a suspect that his or her exercise of the constitutional right to remain silent may result in harsher treatment. 279 Kan. at 34-35. Even in the implied detriment circumstance of Swanigan, however, the court did "not regard this tactic as one which makes the confession involuntary per se." 279 Kan. at 37.
(b) Way in which shooting occurred. Detective Hill suggested to defendant that it would be better for him if the shooting occurred in certain ways:
"There's a lot of reasons that people get shot. Sometimes people get shot for reasons that they don't even get arrested for, you know, like there's self-defense. I don't know this is going to be quite a self-defense but this could be some kind of argument deal, because they got people saying that this guy was screaming and yelling and stuff like there was something going on, so maybe there was an argument or something like this that's ensuing, I don't know. So there's a difference between you calling somebody to sell them some weed and then setting them up and just robbing them and them getting shot as opposed to you calling somebody to sell them some weed and then they show up and you just freaking kill them because you didn't like them for whatever reasons. Those are different scenarios. One is worse than the other one, okay? There's a difference between you guys getting over there and doing a drug deal and it goes to shit and this kid end up getting shot."
"[W]hatever your reason was, which usually when I talk to people, they come up–they tell me what the argument was about or what happened, their reasoning usually lowers their charges and there's a big difference between some reckless death as opposed to a first-degree murder. Do you understand that? I mean, you are talking years and years and years, man. There's a difference between somebody being paroled after three years and somebody going away for 25 years."
"I'm going to give you every opportunity to do the right thing here, okay, because, I mean, it's point blank simple. Either you or your friend one shot this kid, okay? And the reason as to why he got shot makes all the difference in the world."
The State denies that it was misleading for Hill in the first paragraph quoted above to suggest to defendant that there are significant legal differences between felony murder and premeditated murder and between shooting someone because a drug deal went bad and because you do not like them. What Hill says in the second quoted paragraph about reckless homicide differing from first-degree murder may be accurate as a matter of law, but reckless homicide is not likely to be within the contemplation of the interrogating officer in the circumstances and when the victim was shot in the back. It probably was misleading for Hill to be contrasting the punishment for reckless homicide with that for first-degree murder in the circumstances of this case. In the third quoted paragraph, the officer reiterates the proposition that the motive for the killing is highly significant.
Defendant cites no Kansas cases to support his position that the officers' misrepresentations of the law render his statement inadmissible. The State again relies on Harris, where police officers used "themes and options" in questioning the defendant.
"One of the themes was that the shooting was premeditated and that Harris had planned to kill the victim. Another theme eliminated the premeditation and suggested that Harris had been involved in a drug deal that went bad, requiring Harris to shoot the victim to defend himself. Detective Chisholm encouraged Harris to be truthful about what he was thinking at the time of the shooting to prevent a premeditated murder conviction with the potential for a 50-year minimum sentence." 279 Kan. at 171.
The court determined that the interrogating officer
"properly stated the difference between premeditated murder and felony murder and informed Harris about potential sentencing differences between the two crimes. There is no indication that Harris' independent will was overcome by Detective Chisholm's forthright comments about possible charges. Harris knew at the beginning of the interrogation that it involved a murder. His failure to understand the elements of felony murder does not make his confession involuntary." 279 Kan. at 172.
Another of Detective Hill's questionable statements is similar to his suggesting that Buckman's death might be due to