265 Kan. 61
(959 P2d 862)
No. 77,558
STATE OF KANSAS, Appellee, v. SAKONE MEL DONESAY, Appellant.
SYLLABUS BY THE COURT
1. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, this court accepts that determination if it is supported by substantial competent evidence.
2. Where the accused is a juvenile 14 years of age or older, the determination of whether the accused's extrajudicial statement is voluntary is based upon the totality of the circumstances, and the court exercises the greatest care in assessing the validity of the confession.
3. When a suspect makes a statement which may be ambiguous as to whether the suspect is asserting a right to remain silent or to confer with counsel, the interrogator may but is not required to ask questions to clarify whether the suspect is asserting a right to remain silent or to confer with counsel.
4. A defendant may tender guilty pleas to some but not all counts of a complaint. The acceptance of the defendant's plea of guilty after the requirements of K.S.A. 22-3210 are met is within the sound discretion of the trial court.
5. Admission of evidence is entrusted to the sound discretion of the trial court. Discretion is abused only where no reasonable person would take the view adopted by the trial court. Absent a clear showing of abuse of discretion, evidentiary findings of the trial court will not be set aside on appeal.
6. K.S.A. 60-401(b) provides that "relevant evidence" is evidence having any tendency in reason to prove any material fact.
7. The admission or exclusion of evidence is also measured by the harmless error rule.
8. In determining if the erroneous admission of evidence is harmless, the court must consider if it is inconsistent with substantial justice, i.e., affects the substantial rights of a defendant and, if not, whether this court can declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.
9. The admission of evidence in a murder trial regarding the victim's family, the victim's relationship with a spouse or family member and friends, the victim's character, and the details of the victim's last days before death which has been intentionally and not incidentally elicited by the prosecuting attorney during the trial, is patently improper and reversible error.
Appeal from Sedgwick district court; DAVID W. KENNEDY, judge. Opinion filed May 29, 1998. Affirmed in part, reversed in part, and remanded.
Michael J. Helvey, assistant appellate defender, argued the cause, and Steven R. Zinn, deputy appellate defender, was with him on the brief for appellant.
Debra S. Peterson, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, J.: Sakone Mel Donesay appeals his jury convictions of premeditated murder, aggravated robbery, criminal damage to property, two counts of felony theft, and criminal possession of a firearm. Defendant, who was 14 at the time the offenses were committed, was tried as an adult. A controlling sentence of the hard 40 plus 100 months was imposed.
Donesay had been adjudicated as a juvenile offender in 1994 and had been held at the Youth Center at Atchison. Upon his conditional release, he returned to Dodge City to reside with his parents. On November 27, 1995, he and his father met with a community corrections officer in Dodge City and agreed to conditions of intensive supervision for Donesay. Under the agreement, Donesay was subject to a curfew and was not allowed to leave Ford County without a travel permit, there were to be no firearms in the residence and certainly not in defendant's possession, and violations of the law and consequent contact with law enforcement were grounds for revoking the conditional release.
On January 2, 1996, the community corrections officer received a telephone call from Donesay's father. He stated that Donesay had left home on December 31, 1995, had not returned, and was believed to be in Wichita.
The events leading to the charges against Donesay occurred during the first week of January 1996. Donesay and several companions went to Dodge City in a stolen car and stole another one there. Driving a Honda Accord stolen in Dodge City, Donesay returned to his parents' house, got a box which he put in the glove compartment, and drove back to Wichita. Donesay's father kept under his bed a .25 caliber handgun and magazine, which he had seen for the last time on January 1.
After Donesay damaged the front end of the Honda in a collision with a car driven by friends, they abandoned it in rural Sedgwick County. Before leaving the car, Donesay shot it with his father's gun.
Donesay and a friend then stole another Honda in Wichita. Even though they broke into the steering column to start the car without keys, when they found a set of keys in the glove compartment, they put them in the ignition so that the car would not look stolen. When they noticed that one of the headlights was out, they decided they needed to get another car to avoid being stopped by police.
In the early morning hours of January 8, they picked up three female friends and made another stop at the residence of an acquaintance.
Before locating another car to steal, Donesay and his companions saw a sheriff's patrol car traveling in the opposite direction. Officer Kevin Easter advised the dispatcher that he had observed a vehicle run a stop sign and that the driver appeared to be trying to lose him. Officer Easter made a U-turn and turned on his overhead lights. He advised the dispatcher that he was in pursuit and provided a description of the car as well as locations. In trying to get away from the officer, Donesay missed a turn, lost control, went through a fence, and drove into a residential yard.
When the car had come to a stop, Donesay reached under the seat to get the gun, jumped out of the car, and ran. Donesay later told police that he did not think Officer Easter saw that he had a gun and that Easter did not shoot at him or tell him to drop his gun. The officer chased Donesay and several times told him to stop. As Donesay was trying to vault over a fence, Easter grabbed his leg. Easter pulled Donesay off the fence and they both went down. Within a very short time, Easter put his fingers in Donesay's mouth. With Donesay on his right side and Easter on top of him, Donesay put the gun over his shoulder and fired. Officer Bowker, who had arrived by then, heard two quick shots, a pause, and two more quick shots. Donesay testified that Easter "just faded away from me a little bit and I had to push him off a little bit." The defendant got up, saw Easter's gun, and grabbed it. As Donesay was getting up, he saw someone with a flashlight come around the corner and heard a gunshot. When Donesay tried to run, he fell. After a police officer caught and handcuffed him, they found that Donesay had a gunshot wound in his leg, which he had accidentally inflicted himself.
Officer Easter was shot at close range in the right forearm, right shoulder, back of the head, and the back of his neck. The bullet that entered the back of his neck traveled along his spinal column and through his right lung and liver, causing his death. Other injuries on his body included two small tears inside his lips, scrapes on his face, and a bite mark on his left leg.
The first issue we consider is whether it was error for the district court to admit Donesay's statements into evidence. While Donesay was in the hospital recovering from the gunshot wound in his leg, he gave several statements to police. Defense counsel filed a motion to suppress the statements, a hearing was conducted, and the district court denied the motion. Defense counsel objected when the State introduced the statements at trial.
There is no dispute that Donesay was handcuffed to the bed and in custody when he gave statements to the police in his hospital room. Detective Bruce Morton testified that at approximately 6 a.m. on January 8, 1996, he entered Donesay's hospital room. Three law enforcement officers were there guarding the room. Morton was accompanied by two other officers. Donesay was asleep, and there were IV needles in his arms. Officer Morton asked a nurse if it would be all right to interview Donesay, and she stated that the medicine he had been given would not impair his ability to understand what was going on. Donesay was awakened, and the police officers were introduced. Officer Morton started a portable cassette recorder, Donesay was advised of his Miranda rights, and he initialed the Miranda form.
After giving the Miranda warnings, Officer Morton asked, "[D]o you want to give us your side of the story?" Donesay said, "No, not right now." Then Donesay added that he did want to talk to the police, "but later." Morton continued, "Okay, you don't want to talk to us now though?" Donesay answered,"No, I'm too tired." Still, Morton persisted:
"Okay, you can't talk a little bit to us? Just to help, help kinda things out, let us know what happened? I mean, we're not gonna be here long. We're not gonna keep you up all day, we just kinda want to know what's going on so we can figure everything out. Uh, if you can stick with us for awhile, that would help us out a lot. Would you, would you be willing to do that? Huh?"
Donesay answered, "I don't know." Morton, "Well, would you be willing to talk to me? You know, the sooner we talk about this, you know, the easier it's gonna be for everybody." Donesay, "Yeah, I guess I'll talk about it."
At Morton's urging to "tell me, basically what happened tonight," Donesay began talking. He said that he was driving around with friends when a police officer started following him. He was scared because the car was stolen. He sped up and tried to lose the officer. He went too fast, bumped into a fence, and started running. Officer Morton asked, "Okay, did, did the officer start chasing you?" This exchange followed:
"DONESAY: Yeah. I think he just jumped.
"MORTON: I'm sorry, I can't hear you.
"DONESAY: He just jumped on me.
"MORTON: He jumped on you?
"DONESAY: Yeah, he grabbed my leg.
"MORTON: He grabbed your leg?
"DONESAY: Yeah. (chuckle)
"MORTON: Then what happened?
"DONESAY: Then he started putting his finger in my mouth, just pulling my mouth.
"MORTON: Uh-huh.
"DONESAY: And he started, you know, he just, hitting, me.
"MORTON: Yeah.
"DONESAY: You know, like uh. So, I got mad and.
"MORTON: Okay, you got mad, then what?
"DONESAY: Oh,
"MORTON: (cough)
"DONESAY: [T]hat's, that's all I'll talk about it okay?
"MORTON: Huh?
"DONESAY: That's all I want to talk about."
Morton's next words were: "Okay, uh, can I ask you just one thing here?" The questions and answers continued:
"DONESAY: Huh?
"MORTON: Uh, you say you knew the car was stolen, okay? How'd you know the car was stolen?
"DONESAY: Cause. Because, man, I had my friend.
"MORTON: Yeah.
"DONESAY: I had my friend get it for me.
"MORTON: You had a friend get it for you?
"DONESAY: Yeah.
"MORTON: Okay. Would you be wanting to tell me your friend's name?
"DONESAY: No.
"MORTON: Okay, uh, is that the reason you started running from the officer, cause you knew the car was stolen?
"DONESAY: Yeah.
"MORTON: Okay. And when the officer chased you in the back and he grabbed your leg, that made you mad you said?
"DONESAY: No, when he hit me he made me mad.
"MORTON: When he hit you that made you mad? Okay, you don't, you, can you tell me what happened when you got mad?
"DONESAY: No, man, I don't want to talk about it."
Morton began, "So you don't want," and was interrupted by Grosland, one of the other officers: "Can you, can you answer us one, did the officer shoot you in the leg or uh, how'd that happen?" These questions and answers followed:
"DONESAY: Oh, I was . . . I don't know. I was just moving away and it, I seen another cop coming and he's just right there. I just got blasted, I didn't know how I got shot. Not til I fell on the floor and felt my leg.
"MORTON: Okay, you didn't know you got shot? Okay. Where, where did the officer hit you that made you mad?
"DONESAY: My face, he started pulling my mouth.
"MORTON: He started pulling your mouth and hitting you in the face?
"DONESAY: Yeah, pull, . . . sprayed mace all over me.
"MORTON: Okay, he was spraying mace on you at the time?
"DONESAY: Yeah.
"MORTON: Okay. And that's what it, it got you really upset?
"DONESAY: Yeah.
"MORTON: Okay, and you don't know how you got shot in the leg? You jus, [sic] you didn't feel it til, til [sic] when was the first time you discovered you got shot in the leg?
"DONESAY: I just fell.
"MORTON: When you fell?
"DONESAY: Yeah, cause I couldn't run.
"MORTON: Uh-huh.
"DONESAY: That's, that's about it.
"UNKNOWN: Was that by the car?
"MORTON: Was that when you was over by the car?
"DONESAY: Yeah.
"MORTON: Was you hollering for your friends to help you or anything?
"DONESAY: No, I just, wanted to say bye, just, you know.
"MORTON: Did you think you, something was happening to you or did you think you was in great peril or?
"DONESAY: Oh, I just, just knew I wasn't gonna see my friends again, so I told them, you know, hey, see you later, you know.
"MORTON: Why didn't you think you was gonna see your friends again?
"DONESAY: Try to look what I'm mixed up in, man.
"MORTON: What are you mixed up in that, that made you feel that way.
"DONESAY: That's all I want to talk about. I don't want to talk about it any more, man."
When Morton wrapped up the questioning, he gave the time as 6:20 a.m.
At the hearing on Donesay's motion to suppress the statements, Officer Morton testified that, in his view, during the questioning set out above, Donesay never invoked his constitutional right to remain silent. Instead, Morton proposed, Donesay simply was tired of talking and wanted to go back to sleep. On appeal, the State contends that Donesay was willing to talk, but not when he was tired. The State further contends that Donesay was willing to talk, but not about certain subjects, namely his shooting Officer Easter. In these circumstances, the argument continues, it was proper for the officers to inquire whether Donesay wanted to continue answering questions. The State relies on State v. Fritschen, 247 Kan. 592, 606-08, 802 P.2d 558 (1990). In that case, the issue was whether the defendant had asserted his right to remain silent. In State v. Matson, 260 Kan. 366, 374, 921 P.2d 790 (1996), the court stated that the rules applicable to a defendant's exercise of the right to counsel applied as well "where the right to remain silent is exercised." The court quoted the following passage from Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981):
"'[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. . . . [A]n accused . . . having expressed his desire to deal with 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, exchanges, or conversations with the police.'" 260 Kan. at 373.
In Fritschen, Fritschen argued that he invoked his right to remain silent and that the police ignored him and took a statement. Here is the court's discussion of the issue:
"At the outset of the April 25 interview, Fritschen was advised of his Miranda rights, and he made a valid waiver of them. At one point during the interview, Fritschen made some indication that it hurt too much to talk about the murders. At the motion to suppress, Officer Byron Motter testified that Fritschen said, 'I don't want to talk about it any more, it hurts too much.' Fritschen argues that this was an assertion of his right to remain silent.
"Motter said that he interpreted this statement to mean that Fritschen was not invoking his right to silence, just that he did not want to think about the murder. Fritschen was upset at this point and was obviously having a hard time talking about the victims. At trial, Motter testified that the officers asked Fritschen if he could continue answering questions by nodding yes or no, and Fritschen agreed. His answers were reduced to writing and he signed the statement.
"At the pretrial suppression hearing, the court said, 'I am inclined to think . . . that the reason that he didn't want to talk was not the invocation of the Miranda right but merely because the situation and subject matter was so painful to him that he couldn't visualize it without extreme upset.'
"The issue here is whether Fritschen asserted the right to remain silent. In Miranda, the Supreme Court recognized that an assertion of Miranda rights may not always be clear. The Court said, 'If [defendant] is indecisive in his request for counsel, there may be some question on whether he did or did not waive counsel. Situations of this kind must necessarily be left to the judgment of the interviewing Agent.' 384 U.S. at 485.
"In Smith v. Illinois, 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490 (1984), the Court recognized that a statement may be ambiguous as to whether a suspect is asserting his rights. The Court said that in determining whether the statement itself is ambiguous, only prior statements and the statement itself may be looked at. 469 U.S. at 100. Postrequest statements are not relevant.
"Because the Smith Court held that the statement therein at issue was an unambiguous request for counsel, the Court did not determine the procedure if a statement is ambiguous. The majority rule has been promulgated by the Fifth Circuit, which held that an interrogator may ask questions to clarify whether a suspect is asserting his rights. Nash v. Estelle, 597 F.2d 513, 517 (5th Cir.), cert. denied 444 U.S. 981 (1979). This approach seems compatible with Miranda.
"In Crawford v. State, 580 A.2d 571, 576-77 (Del. 1990), the defendant indicated prior to his arrest that he was seeking an attorney. After arrest, he was Mirandized three times and expressed a desire to talk with the police and did not request counsel. The Delaware court held that 'the police should be entitled to attempt to determine the suspect's intention . . . . If, however, the police make additional inquiries concerning a suspect's intentions, the clarifying questions may not coerce or intimidate the suspect or otherwise discourage his efforts to secure counsel.' The court emphasized that such attempts at clarification must be in good faith and held that, under the facts, the police acted in good faith.
"Here, Fritschen's statement does not even reach the level of a potentially ambiguous request to remain silent; Fritschen was saying he was upset and having difficulty talking. Here, even if the request was ambiguous, the officers followed the proper procedure by inquiring if Fritschen wanted to continue answering questions. Fritschen indicated he did. No error is shown." 247 Kan. at 606-08.
The assessment of whether defendant's words "reach the level" of a request to remain silent seems to have been made by the court as a matter of law. His words were treated as if they were plain and unambiguous and, therefore, not subject to construction. In Matson, too, the court seems to have decided as a matter of law whether the defendant had invoked his right to remain silent. The court simply stated: "Here, the defendant did not invoke his right to remain silent. He indicated that he would not answer questions about Ty Gerberding, but did not express a desire to terminate questioning altogether." 260 Kan. at 376.
Here, the district court made a factual finding that the defendant did not invoke his right to remain silent and denied the motion to suppress. The standard of review would be the following for an adult defendant:
"When a trial court conducts a full pretrial hearing on the admissibility of an extra judicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, this court accepts that determination if it is supported by substantial competent evidence." State v. Lewis, 258 Kan. 24, Syl. 4, 899 P.2d 1027 (1995).
Where the accused is a juvenile 14 years of age or older, the court exercises "the 'greatest care' in assessing the validity of the confession." State v. Robinson, 261 Kan. 865, 888, 934 P.2d 38 (1997) (quoting State v. Young, 220 Kan. 541, 553, 552 P.2d 905 [1976]). In Young, the court concluded that an accused juvenile's pretrial waiver of his privilege against self-incrimination is controlled by In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), and State v. Hinkle, 206 Kan. 472, 479 P.2d 841 (1971). 220 Kan. at 546. In Young, this guiding principle was quoted from In re Gault:
"'. . . If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.' (p. 55.)" 220 Kan. at 546.
In making its determination, the court considers the totality of the circumstances. 220 Kan. at 546. The factors considered in Young were:
the age of the minor,
the length of the questioning,
the youth's education,
the youth's prior experience with the police, and
the youth's mental state.
Beyond the court's consideration of whether a constitutional right was invoked and irrespective of the decision, the substantial evidence standard, as adjusted for the juvenile defendant in the present case, would be applied in evaluating voluntariness of a confession. If we conclude as a matter of law that Donesay had not invoked his right to remain silent, application of the substantial evidence standard would be to the question of whether the accused knowingly and intelligently waived his constitutional right. If we concluded as a matter of law that Donesay had invoked his right to remain silent, the substantial evidence standard would be applied to the questions of whether the interrogation ceased for an appreciable period when the accused exercised a constitutional right and whether the statements made or the questions asked by police after exercise of the right amounted to questioning, its functional equivalent, or were known to police to be likely to produce an incriminating response. See Matson, 260 Kan. at 375.
At the conclusion of the hearing on the motion to suppress, the trial judge made the following findings relative to Donesay's youthfulness: "Donesay's date of birth is January 28th, 1981, which would have made him 14, real close to being 15 years old at the time of . . . these interviews." Reviewing the Miranda form and the first "interview both together took around six minutes." Donesay was in the eighth grade and "certainly of average intellect." "[Donesay] has four prior adjudications. So he's had contact with the court system and police departments in the past." The interviews took place in Donesay's hospital room, "[h]e was medicated," but "the officers were all told that the medication would not affect Mr. Donesay's ability to understand, and that's reflected by his responses to the questions." With regard to Donesay's being away from his home and unaccompanied by a parent, the trial judge found:
"It's undisputed that Mr. Donesay's parents were not in Wichita. He may or may not have had a relative here in Wichita. But there was never a request on his part to converse with his parents before he talked with the officers.
. . . .
"[H]e was residing in Dodge City, Kansas. However, from the statements in the taped interview, he was no stranger to Wichita. He'd been to Wichita often enough to know that there were people here that didn't like him very much. So. Being in a strange city is not a factor in this case."
On the whole, the trial judge's observations on Donesay's juvenile status accurately reflect the record. Only two call for any comment, and those would not seem to be significant to resolution of this issue. The first is the length of the questioning. At the suppression hearing, Morton testified that it was 6:14 a.m. when Donesay signed the Miranda form, which was after the warnings had been reviewed and four pages into the transcript of the taped interview. At the end of the first interview, it was 6:20 a.m. The 6 minutes did not include review of the warnings. It may also be noted that Donesay's interaction with the police on the occasion of the first interview seems to have taken substantially longer than the tape recorded portion. The trial judge stated:
"[Defendant's] first conversation was with Agent Grosland at 3 o'clock in the morning, approximately. There's no interview. He came back, and I'll find it's more probably true than not true that Agent Grosland, Lieutenant Bardezbain, and Detective Morton returned to the hospital sometime around 5:35 in the morning.
"I find it's more probably true than not true that [the] reason the Miranda questions aren't asked until after 6 o'clock is that the KBI agent was getting history."
Second, whether defendant asked to have his parents present has not been shown to have either legal or factual relevance. Overall, though, the trial judge's view that the defendant was not particularly vulnerable to police overreaching due to his age is supported by substantial competent evidence.
With regard to the question of whether Donesay invoked his right to remain silent, the trial judge reviewed the transcript of the first interview:
"What troubles me about this case is the statements he doesn't wanna talk anymore. Initially, . . . it's just that he doesn't want to talk to him at that particular time because he's tired . . . .
"We get down to the bottom of page 5 of the transcript, . . . that's very clearly Mr. Donesay saying he doesn't wanna talk about the shooting.
"Page 6, . . . and Mr. Donesay again is willing to talk about something other than the shooting.
" . . . Mr. Donesay is more than willing to talk about getting shot himself. He's not willing to talk about having shot Deputy Easter."
Then the trial judge announced his decision:
"I don't find any of that to be ambiguous. When it's put in context, it's very clear what he's talking about.
"I find that Mr. Donesay understood all of his rights; that the fact that Detective Morton gave him a little bit more explanation on two of them does not indicate that Mr. Donesay didn't understand them. He understood what his rights were. He talked to the detective or--the detective--the Agent and Lieutenant freely, voluntarily, and understandably, did so as a product of his free--of his free and independent will.
"And I'll deny the motion.
"I'm relying on Gideon and . . . Fritschen, 247 Kansas 592."
It appears that the trial judge found that Donesay's statements about not wanting to talk, like Fritschen's, did not amount to requests to remain silent. The judge found that Donesay said he was tired and that he did not want to talk about shooting Easter, but did not invoke his right to remain silent. There is a difference between the circumstances in Fritschen and those in the present case that was overlooked by the trial judge. Fritschen said he did not want to talk about his stabbing the victims because "it hurts too much," but he indicated his willingness to answer questions by nodding his head. 247 Kan. at 595-96, 606. Thus, the court found that "Fritschen was saying he was upset and having difficulty talking" rather than invoking his right to remain silent. 247 Kan. at 607. In the present case, in contrast, Donesay never indicated his willingness to answer questions nonverbally or to allow someone else to formulate the words for him.
Although Fritschen is distinguishable from the present case, it and Matson control in the present case. As noted above, in Matson, the court decided the defendant did not invoke his right to remain silent when he refused to answer questions about one person, but did not insist on terminating questioning altogether. 260 Kan. at 376. In the present case, too, Donesay did not insist on terminating questioning altogether. First, he said he wanted to give his side of the story, but at a later time. Then he avoided answering questions about shooting Officer Easter but willingly continued answering when the police changed subjects. As already noted, the trial judge did not expressly state that Donesay had not invoked his right to remain silent, but all indicators pointed to that decision. The trial judge's decision appears to be in harmony with this court's previous decisions in Fritschen and Matson.
It also would appear to be consistent with principles set out by the Supreme Court in Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994). In that case, the Court "decide[d] how law enforcement officers should respond when a suspect makes a reference to counsel that is insufficiently clear to invoke the Edwards [v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981),] prohibition on further questioning." 512 U.S. at 454. With regard to this gray area between an effective waiver of the constitutional right and an effective invocation of it, the Court stated:
"To avoid difficulties of proof and to provide guidance to officers conducting int