IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 88,084
STATE OF KANSAS,
Appellee,
v.
JEFFERY FRANK HEBERT,
Appellant.
SYLLABUS BY THE COURT
1. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), holds that the State may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the defendant's privilege against self-incrimination.
2. The Miranda warnings come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. An objective standard is used to judge whether an interrogation was custodial. The proper analysis is how a reasonable person in the suspect's position would have understood the situation.
3. Absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his or her rights.
4. Although the elapsed time between interrogations is one factor that may dissipate the taint of a coerced confession, the lesser taint of a Miranda violation may be dissipated by subsequent warnings even if the unwarned and warned statements were obtained during the same interrogation.
5. A suspect's willingness to make exactly the same statement a second time, following an advice of rights and a written waiver that drives home the seriousness of the steps about to be taken, may demonstrate that the suspect is set on his or her course and, thus, that the statement cannot be attributed to compulsion in violation of the United States Constitution.
6. Because a trial is a search for the truth, a court has the discretion to allow a witness, who has had time to reflect, the opportunity to change or correct his or her testimony if done in good conscience.
7. Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant's constitutional right to a fair trial. An analysis of allegedly improper remarks by a prosecutor is a two-step process. First, a determination must be made as to whether the remarks are outside the considerable latitude granted a prosecutor in discussing the evidence. Second, a determination must be made as to whether, based on the particular facts of the case and in light of the record as a whole, the remarks constitute harmless or prejudicial error. Prejudicial error occurs when the remarks are so gross and flagrant as to deny an accused the right to a fair trial.
8. Where the defendant requested an additional jury instruction and objected to its omission, the appellate court's standard of review is whether the instruction given properly and fairly stated the law as applied to the facts of the case and whether the instruction reasonably could have misled the jury. In making this determination, jury instructions are to be considered together and read as a whole without isolating any one instruction.
9. The admission and exclusion of evidence lie within the sound discretion of the trial court. Appellate courts review the trial court's admission of evidence for abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, or in other words, when no reasonable person would have taken the position that was taken by the trial court.
10. The admission of photographs as evidence in a homicide case rests within the trial court's discretion, and that court's ruling will not be disturbed on appeal absent a showing of abuse of discretion.
11. Under the facts of this case, a photograph taken of a police officer in uniform before injury or death of the officer was relevant to prove identity and status, both of which were elements that the prosecution had to prove beyond a reasonable doubt, and where the photograph was displayed one time, not accompanied by inflammatory personal details, it was admissible.
12. A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial so long as (1) the evidence, when viewed in the light most favorable to the defendant's theory, would justify a jury verdict in accord with the defendant's theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense.
13. Cumulative trial errors may require reversal of a defendant's conviction if the totality of the circumstances shows they substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.
14. K.S.A. 21-4635 et seq. is not unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); the hard 50 sentence neither provides for an increase in the maximum sentence nor authorizes a separate sentence.
Appeal from Clay district court, MERYL D. WILSON, judge. Opinion filed January 16, 2004. Affirmed.
Debra J. Wilson, capital appellate defender, argued the cause and was on the briefs for appellant.
John K. Bork, assistant attorney general, argued the cause, and Elizabeth L. Reimer, assistant attorney general, Stephen D. Maxwell, assistant attorney general, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Jeffery F. Hebert was convicted of capital murder in violation of K.S.A. 21-3439, aggravated battery against a law enforcement officer in violation of K.S.A. 21-3415, criminal use of weapons in violation of K.S.A. 1999 Supp. 21-4201, and inflicting death to a police dog in violation of K.S.A. 1999 Supp. 21-4318. The jury was unable to reach a unanimous decision on a death sentence, and the court sentenced the defendant to consecutive sentences of life in prison without the possibility of parole for 50 years for capital murder, 46 months for aggravated battery against a law enforcement officer, 7 months for criminal use of weapons, and 12 months for inflicting death to a police dog. He appeals, raising numerous issues. We conclude that no reversible error occurred and affirm.
Facts
Jeffery F. Hebert, while hiding from police in the attic of his residence, shot and killed Sheriff Deputy Jim Kenney, head of the Clay County K-9 unit, as Deputy Kenney climbed the attic stairs with his police dog named Copper, searching for the defendant. The defendant then shot the police dog two times with a .12-gauge shotgun, killing the dog. Deputy Kenney fell backwards down the stairs causing Sheriff Gary Caldwell to fall and injure his hand which required "three or four" stitches. In addition to the .12-gauge shotgun, the defendant possessed two other weapons, one of which was illegal to possess: a sawed-off .20-gauge shotgun. The defendant surrendered to the police after tear gas was shot into the attic.
The events leading to the death of Deputy Kenney began on November 12, 1999, when the defendant was arrested in Morganville on a probation violation from Cloud County. The defendant was transported from Morganville, in Clay County, to the Cloud County jail later that day. Three days later, on November 15, 1999, the defendant and two other inmates escaped from jail by subduing two deputy sheriff officers. Before trial, the defendant pled guilty to two counts of battery against a corrections officer and one count of aggravated escape from custody in connection with the escape. On the defendant's motion in limine, these convictions were excluded at trial based upon their prejudicial value outweighing the probative value of such convictions.
The defendant testified that after he escaped he originally intended to hide out and live in the woods. Soon after the escape, the defendant became separated from the other escapees and the plan began to fall apart. After many miles of walking and hitchhiking, the defendant returned to his house in Morganville during the early morning hours of November 16, 1999. He drank a couple of beers, packed a duffel bag full of clothes, and gathered his .12-gauge shotgun, his .22 caliber rifle, and his .20 gauge sawed-off shotgun. The defendant testified that he intended to use the guns to hunt animals in the woods for food. He explained that he always kept his guns loaded with the safeties off because he was the only one who handled them.
Around 7 a.m. the defendant called a friend, Buddy Butler, intending to ask for a ride, but changed his mind because he did not want to get Butler involved. Soon after calling Butler, the defendant fell asleep on his couch.
While the defendant was sleeping, Detective Kelly Kemp of the Clay County Sheriff's Department was gathering information from people who knew the defendant. Detective Kemp discovered the defendant's location when speaking with Butler, and he relayed this information to Sheriff Caldwell. Sheriff Caldwell instructed Detective Kemp to obtain a search warrant for the defendant's residence. While waiting for the search warrant, Sheriff Caldwell called the defendant's home telephone number three times and knocked on the defendant's door, but heard no response. Sheriff Caldwell called Deputy Kenney and asked him to come to the defendant's house with his police dog. Deputy Kenney and Copper arrived at the house around 2:30 p.m.
Meanwhile, inside the house, the defendant had just woken up. He finished packing his duffel bag and, according to the defendant, he was about to head outside to go live in the woods when he looked out the window and saw Sheriff Caldwell's vehicle parked outside. For reasons he is not able to explain, the defendant decided to take a shower. After getting out of the shower, the defendant again looked out the window, hoping one of the officers would move from their position long enough for him to escape.
At approximately 3:45 p.m., Detective Kemp arrived with the search warrant and a copy of the arrest warrant from Cloud County. Sheriff Caldwell positioned his officers in preparation for entering the house. Sheriff Caldwell knocked on the door and announced his presence. After waiting a couple of minutes and receiving no response, Detective Kemp forced open the back door. Sheriff Caldwell, Undersheriff Chuck Dunn, Detective Kemp, Deputy Kenney, and Copper entered the house.
When the defendant heard Sheriff Caldwell knocking, he gathered his three guns and went upstairs to the attic. The defendant still hoped to escape but saw a highway patrol officer was stationed outside near the window he planned to use in his escape. The defendant sat in the corner of the darkened attic and laid his guns down on the floor.
When Sheriff Caldwell and his team finished conducting a sweep of the first floor, Deputy Kenney and Copper, followed by Sheriff Caldwell, headed up the stairs to the attic. Deputy Kenney stopped four or five steps from the top of the stairs and released Copper's leash, allowing him to search the attic.
The defendant saw Copper come into the attic and he grabbed his .12-gauge shotgun. Copper briefly walked around the attic but did not notice the defendant in the corner. Copper walked back to Deputy Kenney, who was hidden from the defendant's view. Deputy Kenney grabbed Copper and told him to lie down in a voice audible to the defendant. The defendant testified that he then saw one hand come into view to pet the top of the dog's head. When the defendant saw the bill of a cap and the end of what he thought was a gun come out from behind the corner, he raised his gun and fired. After the shot was fired, the dog began running toward the defendant. The defendant shot the dog once with his shotgun, but the dog continued to run toward him, so he shot him a second time and killed him.
The bullet fired at Deputy Kenney passed through a light switch and the plywood wall. The bullet and various smaller projectiles from the light switch and wall hit Deputy Kenney on the right side of his head, causing loss of consciousness immediately. The shot threw Deputy Kenney backwards into Sheriff Caldwell, causing both of them to fall down the stairs. The fall caused Sheriff Caldwell to suffer cuts to his nose and his hand, the latter requiring three to four stitches. Sheriff Caldwell dragged Deputy Kenney out to the back porch, where a first responder, Arnold Knoettgen, soon arrived and began treating him.
Sheriff Caldwell returned to the house and instructed Detective Kemp to shoot teargas rounds through the upstairs windows to force the defendant out. Four rounds of teargas were fired into the attic. Sheriff Caldwell and the other officers began yelling to the defendant, telling him that if he came down they would guarantee his safety. After a few minutes, the defendant walked down the steps and was arrested.
Deputy Kenney was still alive at this point but had shallow breathing and a weak pulse. Pam Kemp, Director of Emergency Medical Services at the Clay Center Hospital, soon arrived on the scene. Deputy Kenney was rushed to the emergency room where unsuccessful attempts were made to save his life. Dr. Timothy Penner pronounced Deputy Kenney dead at 4:50 p.m. The official cause of death was a shotgun injury to the head which caused "interruption of the brain" and loss of blood.
(1) Admission of the Defendant's Statements
On the evening of November 16, 1999, Special Agent Brad Cordts of the Kansas Bureau of Investigation (KBI) was sent to the Clay County Sheriff's Department in connection with the investigation of the murder of Officer Kenney. Agent Cordts arrived at the jail around 7:15 p.m. and his supervisor instructed him to transport the defendant to the Geary County Sheriff's Office to conduct an interview at the Junction City Police Department.
Agent Cordts met the defendant around 8:55 p.m. and the defendant declined to receive medical attention for his various scratches and abrasions. While driving to Junction City, the defendant asked if the officer had died and Agent Cordts replied that he was unsure. Around 9:45 p.m., the defendant was taken into an interview room with Agent Cordts and they sat down at a table. The interview was videotaped, and it began with the following relevant exchange:
"S.A. Cordts: Talk to you a little bit and get both sides of the story. I've only heard one side of the story and, obviously, there's always two sides of a story here and I'd like in your words, your input and tell me what happened and explain in your words and coming from you. Would you like the opportunity to tell me your side of the story?
"Hebert: The officer and the dog came up the stairs and he stuck his head out there and I shot him.
"S.A. Cordts: Okay.
"Hebert: The dog came at me and I shot the dog.
"S.A. Cordts: Okay. Well, as you know, you've probably already seen it on T.V. a hundred times but, I need to read you your Miranda rights, which is your right to have that done and then I'll be glad to listen to anything you have to say and have you tell me in your own words what happened."
Agent Cordts asked the jailer to come in to remove the defendant's handcuffs and Agent Cordts read the defendant his Miranda rights and had him sign a waiver. Approximately 5 minutes after the defendant's first statement, Agent Cordts continued the interview by stating, "Now go ahead and tell me what you're talking about occurred at your house this afternoon." The defendant responded, "The dog came up the steps and went to the north end of the house. The officer stepped up there and I seen his gun and I fired. The dog came at me and I fired twice more. . . ." The defendant went on to make several incriminating statements throughout the 1 hour and 49 minute interview.
The defendant argues the district court erred by failing to suppress the videotape of his pre- and post-Miranda statements. On appeal, the defendant contends that his first confession was inadmissible because it was obtained during a custodial interrogation without a Miranda warning. He contends that his second post-Miranda statement made shortly thereafter was tainted by his earlier confession in the course of one continuous interview.
Pre-Miranda Statements
The Fifth Amendment to the United States Constitution states that no person shall be compelled in any criminal case to be a witness against himself or herself, nor be deprived of life, liberty, or property, without due process of law. State v. Lewis, 258 Kan. 24, Syl. ¶ 1, 899 P.2d 1027 (1994). Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), holds that the State may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the defendant's privilege against self-incrimination. State v. Ewing, 258 Kan. 398, Syl. ¶ 1, 904 P.2d 962 (1995).
Miranda warnings come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. State v. Dudley, 264 Kan. 640, Syl. ¶ 1, 957 P.2d 445 (1998). An objective standard is used to judge whether an interrogation was custodial. The proper analysis is how a reasonable person in the suspect's position would have understood the situation. State v. Valdez, 266 Kan. 774, 791, 977 P.2d 242 (1999).
The defendant argues his pre-Miranda statement should have been suppressed because it was elicited by the functional equivalent of a custodial interrogation. There is no doubt in this case that the defendant was in custody when he was being interviewed by Agent Cordts in a private room at the jail. The defendant had been arrested, handcuffed, and chained, and was being transported from one jail to another at the time of the interview. Thus, the defendant's argument revolves around whether the initial pre-Miranda question constituted an interrogation.
"T]he term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation." Dudley, 264 Kan. at 643 (quoting Rhode Island v. Innis, 446 U.S. 291, 300-01, 64 L. Ed. 2d 297, 100 S. Ct. 1682 [1980]).
The district court found the initial question was one in which a reasonable person would respond to in a yes or no fashion, and the question was not designed to elicit a confession but simply to make a determination of whether the officer and the defendant were going to have any further conversation.
The defendant takes issue with the district court's finding, arguing that other jurisdictions have held that the invitation to a suspect to tell his side of the story has been held to constitute an interrogation. However, most of the cases cited by the defendant are distinguishable from this case because they involved situations in which police officers initiated conversations with the defendants after they invoked their right to have counsel present. See State v. Monroe, 103 Idaho 129, 645 P.2d 363 (1982); State v. Williams, 6 Ohio St. 3d 281, 452 N.E.2d 1323 (1983); State v. Crawford, 73 Or. App. 53, 698 P.2d 40 (1985); State v. Barmon, 67 Or. App. 369, 679 P.2d 888 (1984). In the present case, the defendant never invoked his right to remain silent.
State, City of St. Paul v. Lynch, 477 N.W.2d 743 (Minn. App. 1991), is the most persuasive case cited by the defendant. In Lynch, the defendant was pulled over for a traffic violation by one officer but was recognized by another officer as the man she had seen earlier the same evening trying to pick up a prostitute. Upon seeing a known prostitute in the car with the defendant, and without giving a Miranda warning, the second officer said, "I thought you were going home," and then asked him, "what is your side of the story?" 477 N.W.2d at 745. The defendant confessed to engaging in prostitution and possessing marijuana. The Minnesota Court of Appeals held that the district court properly suppressed the defendant's confession because the defendant was in custody and the direct inquiry, which was not germane to the initial traffic stop, constituted an interrogation. 477 N.W.2d at 746.
In this case, Agent Cordts testified that he was shocked that the defendant responded with an incriminating statement. This court, however, is not concerned with the agent's subjective feelings, but whether he or she should have known his or her words were reasonably likely to elicit an incriminating response. Dudley, 264 Kan. at 643. A careful review of the agent's entire opening statement reveals that it was reasonable that the defendant would respond in the manner that he did.
Before asking, "Would you like the opportunity to tell me your side of the story," Agent Cordts told the defendant that he would like to hear his side of the story in his own words. This is exactly what the defendant did. The officer should have known that the defendant, who had made no previous statement, who knew he had shot the officer, and who had been in custody for several hours, might be anxious to take him up on this request to hear his side of the story. This question was not a routine booking question; rather, it was designed to gain information from the defendant about the shooting. The brief question as to whether the defendant wanted to tell his side of the story, preceeded by several requests by Agent Cordts that he wanted to hear the defendant's side of the story, elicited the defendant's confession while he was in custody. The interrogation should have begun with the administration of a Miranda warning.
The officer's failure to administer a Miranda warning to the defendant prior to his custodial interrogation creates the presumption of compulsion as to the defendant's initial confession. Consequently, the defendant's pre-Miranda statement should have been suppressed. State v. Dang, 267 Kan. 198, 205, 978 P.2d 277 (1999) However, the question remains as to whether the erroneous admission of the defendant's initial confession was harmless beyond a reasonable doubt. The answer to this question depends upon whether the defendant's nearly identical post-Miranda confession was admissible. See State v. Lucas, 243 Kan. 462, 476, 759 P.2d 90 (1988).
Post-Miranda Statements
The defendant argues that his post-Miranda statements should also have been suppressed because they were tainted by his pre-Miranda confession made in the course of the same interview.
Oregon v. Elstad, 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985), is the beginning point of our analysis of this issue. In that case, the defendant made an unwarned, incriminating statement while being arrested in his home. Approximately an hour later, the defendant was advised of his Miranda rights and provided a full written confession at the sheriff's headquarters. He subsequently sought to suppress his oral statement and signed confession, arguing that the initial statement "let the cat out of the bag" had tainted the subsequent confession as fruit of the poisonous tree under Wong Sun v. U.S., 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). On appeal, the United States Supreme Court concluded:
"We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights." 470 U.S. at 314.
Elstad thus applies in cases where there is no coercion or an attempt to undermine a suspect's ability to exercise free will. State v. McCorkendale, 267 Kan. 263, 270, 979 P.2d 1279 (1999). In this case, the district court found that Agent Cordts' demeanor was not hostile, demeaning, offensive, or threatening, and review of the videotaped interview and the record supports this finding. Moreover, the defendant makes no claim on appeal that Agent Cordts' questioning was coercive, and a procedural violation of Miranda is only presumptively coercive rather than actually coercive. See Dang, 267 Kan. at 206 (quoting U.S. v. Singleton, 922 F. Supp. 1522, 1530-31 [D. Kan. 1996]). Absent coercion or improper tactics by the officers in obtaining the initial statements, there is no presumption of compulsion as to the subsequent post-Miranda statements. 267 Kan. at 205.
The defendant would have us distinguish Elstad, because his post-Miranda confession occurred in one continuous transaction that included his pre-Miranda confession, with no hour-long gap between the two as existed in Elstad. The defendant argues this case is more analogous to three cases cited below where the warned statement was suppressed because it was made in the course of one continuous transaction that included the unwarned statement.
In Lewis, the officers failed to give Miranda warnings and used deliberately coercive tactics during the first interrogation in an attempt to obtain incriminating statements from Lewis. Ten hours later, the officers continued to use improper tactics in a second interrogation until Lewis confessed. At that point, he was given a Miranda warning and confessed. This court reversed the district court's admission of the pre- and post-Miranda statements because the State failed to overcome the presumption of compulsion and because the police deliberately used coercive and improper tactics to obtain the incriminating statements. 258 Kan. at 37-38.
In Miranda v. Arizona, 384 U.S. at 494-96, local police officers interrogated defendant Westover over a 14-hour period without a warning of his rights. At the conclusion of the interrogation, Federal Bureau of Investigation (FBI) agents immediately began their own interrogation, administered a proper warning, and obtained written confessions within a few hours. The statements were admitted at trial.
The United States Supreme Court concluded that an intelligent waiver of the defendant's constitutional rights could not be assumed because the warning came at the end of the interrogation process in the defendant's point of view. The Court explained that the FBI interrogation was conducted immediately following the state interrogation, in the same police station, and in the same compelling surroundings. Thus, the federal authorities were the beneficiaries of the pressure applied by the state interrogation. The court suggested that "[a] different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them." 384 U.S. at 496.
In U.S. v. Carter, 884 F.2d 368 (8th Cir. 1989), postal inspectors interviewed a bank employee in connection with the disappearance of various pieces of mail. Prior to receiving his Miranda warning, the defendant made incriminating statements and allowed the inspectors to search his wallet. The inspectors then administered his Miranda rights 55 minutes into the interview and the defendant provided a written confession. The district court suppressed the pre-Miranda statements and all evidence obtained. On appeal, the Eighth Circuit distinguished its case from Elstad, concluding that the second, warned confession was inadmissible:
"[T]here was no passage of time to speak of between the unwarned confession and the subsequent warnings and confession, all of which occurred as part and parcel of a continuous process. Thus, the second confession came almost directly on the heels of the first. Although Elstad precludes the formulation of a 'rigid rule' in determining the admissibility of the second confession, [citation omitted] our review of 'the surrounding circumstances and the entire course of police conduct with respect to the suspect,' [citation omitted] convinces us that the second confession cannot be allowed into evidence." 884 F.2d at 373.
Lewis, Miranda, and Carter present markedly different from the case we now review, as the statements admitted in each were obtained after a long period of unwarned interrogation in which the investigators were deliberately trying to obtain incriminating statements prior to giving the warnings. The circumstances in each of the three cases suggested corrosive police tactics. In the present case, the pre-Miranda statement was made in response to the Agent's first question. Moreover, Miranda was decided prior to the Supreme Court's decision in Elstad. The three cases relied on by the defendant are dissimilar and not persuasive in resolving the question presented in this case.
The defendant is correct that the second confession in this case came shortly after the first unwarned confession. However, sev