IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 78,476
STATE OF KANSAS,
Appellee,
v.
SCOTT McCORKENDALE,
Appellant.
SYLLABUS BY THE COURT
1. When a suspect makes a statement which may be ambiguous as to whether the suspect is asserting a right to remain silent, the interrogator may ask questions to clarify whether the suspect is asserting a right to remain silent. However, the interrogator is not required to do so and may continue questioning.
2. While Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), requires that an unwarned admission under circumstances set forth in that opinion must be suppressed, the admissibility of any subsequent statement made by an accused following the giving of a Miranda warning turns solely on whether it was knowingly and voluntarily made. Where there is no coercion or an attempt to undermine an accused's ability to exercise free will, the subsequent statement should be admitted.
3. Factors to be considered in determining whether a confession is voluntary include: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused's age, intellect, and background; and (5) the fairness of the officers in conducting the investigation.
4. Opening statements by counsel in criminal prosecutions are not evidence. They are given for the purposes of assisting the jury in understanding what each side expects its evidence at trial will establish and to advise the jury what questions will be presented for its decision. The tendency is to permit a prosecuting and defense attorney reasonable latitude in stating to the jury the facts they propose to prove.
5. Kansas does not ordinarily apply the plain error rule, and reversible error normally cannot be predicated upon a complaint of misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. If the prosecutor's statements, however, rise to the level of violating a defendant's right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. Where the appellate court, in examining a claimed error of prosecutorial misconduct, determines that the misconduct may rise to the level of violating a defendant's right to a fair trial, the claimed error will be considered. Thus, the plain error rule is recognized where the prosecutor's misconduct is so prejudicial or constitutes a constitutional violation that if not corrected will result in injustice or a miscarriage of justice.
6. The appellate standard of review is the same in cases where the issue of prosecutorial misconduct is preserved by objection at trial and in cases where not so preserved, but where the claimed error has been determined to implicate a defendant's right to a fair trial and, thus, rises to the level of a denial of the defendant's Fourteenth Amendment right to due process.
7. The analysis of the effect of a prosecutor's allegedly improper remarks in closing argument is a two-step process. First, the appellate court must determine whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. This analysis commences with the holding that in criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Second, the appellate court must determine whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial, requiring reversal.
8. In determining that a prosecutor's improper remarks made in closing argument are not so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial, the reviewing court must be able to find that when viewed in light of the record as a whole, the error had little, if any, likelihood of changing the result of the trial. This is a harmless error analysis. The court must be able to declare beyond a reasonable doubt that the error was harmless.
9. Each case must be scrutinized on its particular facts to determine whether prosecutorial misconduct is harmless error or plain error when viewed in the light of the trial record as a whole.
10. A prosecutor's remarks in closing argument which urge the jury not to consider instructions given by the court because they were thrown in to confuse or which ask the jury to totally disregard instructions given by the trial court, constitute prosecutorial misconduct.
Appeal from Wyandotte district court; PHILIP L. SIEVE, judge. Opinion filed May 4, 1999. Affirmed.
Mary Curtis, assistant appellate defender, argued the cause, and Hazel Haupt, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were with her on the brief for appellant.
Sheryl L. Lidtke, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Scott McCorkendale was convicted and sentenced for the first-degree premeditated murder of 15-year-old Rogelio Herrera. On appeal, the defendant claims error in the admission of his statements to police because they were involuntary and admitted in violation of his Miranda rights. He further claims that the trial court's allowing the prosecutor to argue transferred intent as well as prosecutorial misconduct requires reversal. We conclude that no reversible error occurred and affirm.
Herrera died instantly of a single gunshot wound to the head. The defendant fired the shot with a German Mauser 7.65 mm. infantry rifle, circa World War II. The bullet entered the forehead of the victim and blew out the back of his head, scattering brain and skull fragments in a 60- to 70-foot radius.
The defendant was 31 years old and worked in Kansas City, Kansas, building fuel trucks for airports. At the time of the shooting, he was living in Kansas City with his common-law wife, Melody Bulgarelli. He had previously lived in the neighborhood in Kansas City where the victim was killed. When the shooting occurred he was visiting his lifelong friend, David Crisp, who also lived in that neighborhood.
The night before the shooting, the defendant and Bulgarelli began drinking beer and continued throughout most of that night and into the next day. The defendant testified that he was very drunk on May 4, 1996, the day of the shooting. The defendant and Bulgarelli were driving to Crisp's house when they encountered a group of 8 to 12 teenagers in the neighborhood. The defendant did not like the looks he was getting from the group and he stopped, got out of his truck, and asked the teenagers what they were looking at. Verbal assaults from the teenagers followed, and the teenagers approached the defendant's truck, throwing rocks and bottles. An object was thrown through the defendant's back window and Bulgarelli was cut by glass. The defendant and Bulgarelli then drove to his mother's house.
In a statement to the police following the shooting, the defendant's mother stated that the defendant was in a rage when he entered her home, demanded a gun, and in response to his mother's suggestion that he should report the incident to the police, stated to her that the police would do nothing about it. His mother indicated in her statement that the defendant went upstairs looking for a gun or ammunition and pounded the wall in frustration when he was not successful because he "was going to get even" with the teenagers. The defendant's mother told police that she demanded that her son leave her house, which he did. The defendant's mother's statement was admitted at trial because in her trial testimony she had no recollection of what transpired because of medication she was taking at the time of trial.
The defendant owned a German Mauser 7.65 mm. rifle which had been given to him as a Christmas gift by his parents. Upon leaving his mother's house, he then traveled to a shop in Johnson County called the Bullet Hole where he tried to purchase ammunition for the rifle. The Bullet Hole did not carry this rare ammunition and sent him to C&R Specialty, another hunting supply shop in Johnson County. With the added help of Bulgarelli, he purchased a box of ammunition at a cost of about $34. Employees from both shops remembered the defendant because of his unusual request. The defendant then traveled back to his home and retrieved the rifle.
The defendant and Bulgarelli went back to Crisp's house. The group of teenagers, including the victim, were still in the area. Both the defendant and Bulgarelli went into Crisp's house but the defendant came back out, set the rifle on the hood of a car in back of the house, and fired, shooting the 15-year-old victim in the head.
Several witnesses testified that they saw the defendant putting something behind the seat of his truck after the shooting. The six-year-old niece of a neighbor said that the defendant threatened her uncle, Bruce Finger, after the shooting and told him not to tell anyone what he saw. Finger testified that defendant told him after the shooting: "I blew his fucking brains out."
Jason Wilt, a patrolman for the Kansas City, Kansas Police Department, was the first officer on the scene. He spoke to Jesse Dominquez, who told Officer Wilt that he had seen a person put something in a pickup truck right after the shooting. Later, he and Patrolman Jeffrey Miskec talked to the defendant. The defendant told them that he did not hear the gunshot and did not see anything.
Officer Wilt asked for and received permission from the defendant to search his vehicle. Patrolman Miskec searched the truck and found the Mauser rifle behind the seat. The defendant immediately raised his hands in the air and confirmed that the rifle was his. Officer Wilt told the defendant to put his hands down as he was not under arrest at the time.
Patrolman Miskec observed the defendant at the scene and testified that the defendant did not seem intoxicated and that his speech was coherent. Wilt testified that from the time the rifle was discovered, the defendant was not free to leave the area.
Lieutenant John Cosgrove of the Response Homicide Unit arrived at the crime scene and was informed that officers had located a truck parked in the alleyway with a rifle behind the seat. The defendant was sitting with Bulgarelli, Crisp, and Finger. Cosgrove asked the group about the rifle. The defendant said the rifle had been given to him by his father and that he had fired his rifle earlier that day at the Bullet Hole. Cosgrove asked the defendant to come down to the station.
Patrolman William Carpenter transported the defendant to the police station. He testified that the defendant did not seem to be intoxicated at the time. Lieutenant Cosgrove testified that he felt that while the defendant might be under the influence, he was able to walk without difficulty, answer questions, and did not slur his words.
After completing his crime scene investigation, Cosgrove went to the police station. The defendant was advised of his Miranda rights and indicated that he would give a statement. Cosgrove testified that during the questioning which was tape-recorded, the defendant responded to the questions and did not seem confused by any of them.
In his initial statement, the defendant told Cosgrove that following his purchase of ammunition, he went back to the Bullet Hole and test fired one shot on their shooting range. He stated that he was standing outside of Crisp's house when a gunshot sounded. He admitted going back to his apartment after the confrontation with the teenagers and getting his gun but stated that he only took the gun because he wanted to buy ammunition and test it.
At the end of the first statement, Cosgrove turned off the recorder and told the defendant that he knew long rifles could not be shot at the Bullet Hole. He stated to the defendant that a witness saw him with the rifle in back of Crisp's house and that they were going to do ballistics to find out who fired the rifle. He told the defendant that he did not think the defendant was a bad guy, and even though the defendant had told him the teenagers were unarmed and, thus, could not claim self-defense, he still felt the teenagers were somewhat culpable because they were "little thugs." Cosgrove then told the defendant that he did not think the defendant was a cold-blooded murderer, and stated a few times: "Are you sure you just didn't shoot down just to try to scare him, that you weren't trying to hit him, that maybe it was an accident?" The defendant responded, "Yeah, that's what happened."
Cosgrove then recorded the defendant's second statement in which the defendant stated that he "[w]ent over to the neighbor's fucking house in their drive-way slammed the barrel down on the fucking top of an Oldsmobile, pulled the fucken trigger to scare them, it hit somebody, shit fucken happens. I'm guilty, fuck it, let this." The defendant stated that he did not intend to strike Herrera and was not aiming the weapon. He said that he was a good shot and could take someone out if he wanted to but that was not the case in this situation. The defendant concluded by saying,
"No, and it's honest to the truth right there, I am not lying I'll get a fucking lie detector deal right now. I was not aiming, I just slammed the mother fucker down on the top of the Oldsmobile car next door to my little brother's house, and pulled the fucking trigger and it hit somebody, I was not aiming to hit anybody. I wanted to scare them and it hit somebody so I'm going for murder. So let's just get this done and over with, I done admitted it."
The defendant then asked for his lawyer and questioning ceased. Additional facts bearing upon the defendant's claims are set out in this opinion.
I. The Admission of the Defendant's Statements
Prior to trial, the defendant moved to suppress statements he made to the police. After a full hearing, the trial court denied the defendant's motion to suppress. On appeal, the defendant contends that his statements to police officers at the scene of the crime were made without a Miranda warning and, therefore, inadmissable; his crime scene statements tainted those statements made after he received a Miranda warning; and officers ignored his invocation of the right to remain silent made during the interrogation. Finally, he contends that all of his statements were involuntary, primarily based upon his intoxicated condition and, therefore, inadmissible under the Fifth Amendment to the United States Constitution.
(a) Pre-Miranda Statements
The trial court noted that while the statements made between the time the defendant was actually in custody and the time he was given his Miranda warning might be subject to suppression, any such statements made by the defendant were not incriminating. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). We agree. Moreover, the record demonstrates that defendant's pre-Miranda statements were not introduced in evidence. The defendant admits that these statements were not admitted in the State's case in chief but contends that they were introduced by the State in rebuttal. Lieutenant Cosgrove was the State's only rebuttal witness and the record demonstrates that the defendant's pre-Miranda statements were not admitted. Even had they been admitted, we have held that Miranda does not preclude the use of such statements to impeach the defendant where such statements are inconsistent with the defendant's trial testimony bearing directly on the crime charged and the defendant makes no claim that such statements were coerced and involuntary. See State v. Graham, 244 Kan. 194, 201, 768 P.2d 259 (1989).
(b) Post-Miranda Statements
The defendant further claims that his pre-Miranda statements made at the scene tainted the formal statement taken at the police station and should have been excluded because later statements were "fruit of the poisonous tree." It is difficult to follow the defendant's argument. His pre-Miranda statements were not incriminating. The formal statement taken at the station was not used by the State in its case in chief but instead was used in rebuttal after the defendant had testified for impeachment purposes. Thus, while the defendant was warned of his rights under Miranda, the formal statement was not subject to the requirements of Miranda because it was used in rebuttal only.
Even if we credit the defendant's argument about his earlier statements, such statements do not render his later formal statements inadmissible if they were, in fact, voluntary. See Oregon v. Elstad, 470 U.S. 298, 309, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985). In Elstad, the Supreme Court held that "[t]hough Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made." 470 U.S. at 309. Elstad applies in cases where there is no coercion or an attempt to undermine a suspect's ability to exercise free will. See State v. Lewis, 258 Kan. 24, 34-36, 899 P.2d 1027 (1995). Thus, the success of the defendant's entire argument rests upon his assertion that his statements were involuntary.
Factors to be considered in determining whether a confession is voluntary include: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused's age, intellect and background; and (5) the fairness of the officers in conducting the investigation. See State v. Esquivel-Hernandez, 266 Kan. 821, ___ P.2d ___ (1999); State v. Speed, 265 Kan. 26, 34-35, 961 P.2d 13 (1998). Voluntariness of a confession is determined from the totality of the circumstances, and where a trial court conducts a full prehearing on the admissibility of extrajudicial statements by the accused, determines the statements were freely and voluntarily given, and admits the statements into evidence at trial, appellate courts accept that determination if supported by substantial competent evidence and do not attempt to reweigh the evidence. 265 Kan. at 35.
After a full hearing on the defendant's motion to suppress, the trial court determined that the statements of the defendant given to the police were freely and voluntarily given. Thus, this court reviews the following factors for substantial competent evidence only:
1. The accused's mental condition
The main question regarding the defendant's mental condition in this case is whether the defendant was intoxicated to the point that his statement was not voluntary. There was testimony that the defendant had consumed a large amount of beer on the day in question and, in fact, had consumed five beers between the time of the shooting and the interview. The defendant claimed that throughout the day he was "blurry." However, the various police officers that testified stated that the defendant was coherent, could understand and answer questions, and did not seem to be affected by intoxication. While Lieutenant Cosgrove did testify that he felt the defendant was somewhat under the influence at the crime scene, Cosgrove also testified that the defendant was coherent at the scene and responded appropriately and without slurring of speech. He also testified that the defendant understood his Miranda rights, agreed to give a statement, and was able to understand his questions and rationally respond to the questions asked.
2. The manner and duration of the interrogation
The defendant acknowledges that the interrogation was not extended. Further, there is nothing in the manner of the interrogation which would suggest that the defendant's statements were not voluntary.
3. The ability of the accused on request to communicate with the outside world
The defendant agrees that he made no attempt to communicate with the outside world or was refused permission to do so.
4. The accused's age, intellect, and background
Other than his argument concerning intoxication, nothing concerning the defendant's age, intellect, or background raises questions regarding the voluntariness of his statements.
5. The fairness of the officers in conducting the investigation
Lieutenant Cosgrove told the defendant that he knew long rifles could not be shot at the Bullet Hole, that a witness saw him with the rifle in the back of Crisp's house, and that they were going to do ballistics to find out who fired the rifle. He also told the defendant that he did not think the defendant was a bad guy and that even though the defendant had told him the teenagers were unarmed and, thus, could not claim self-defense, Cosgrove still felt the teenagers were somewhat culpable because they were "little thugs." Cosgrove told the defendant that he did not think the defendant was a cold-blooded murderer and stated a few times, "Are you sure you just didn't shoot down just to try to scare him, that you weren't trying to hit him, that maybe it was an accident?"
While the defendant claims that the above tactics were unfair and coercive, none of these statements require this court to conclude that the trial court's decision was not supported by substantial competent evidence. The question of whether coercive statements or other tactics render a confession involuntary depends upon whether the defendant's will was overborne at the time of confession. See State v. Strauch, 239 Kan. 203, 212, 718 P.2d 613 (1986). The trial court's conclusion that the defendant's statements were voluntary is amply supported in the record.
The defendant argues that in obtaining his formal statement at the police station, the officers disregarded his invocation of the right to remain silent. The following exchange between the officers and the defendant while being questioned at the station highlight defendant's claim.
"[Detective]: Ok, did Melody drive you out to the Bullet Hole?
"[Defendant]: Yes sir.
"[Detective]: And you went in and asked for.
"[Defendant]: Bought the shells. To the Bullet Hole [and] I asked them, they didn't have it they looked around, they said go to C&R, we went to C&R, we went back to the Bullet Hole, I fired one shot, put my gun on safety, put if (sic) behind the seat, drove to Dave's, shit happened and now I'm here. So that's all I [got] to say.
"[Detective]: Let me slow down just a minute. When you went to the Bullet Hole, do you have a card, that you're a member at the Bullet Hole?" (Emphasis added.)
The defendant argues that when he stated, "So that's all I [got] to say," he was invoking his right to remain silent and questioning should have ceased at that point. When a suspect makes a statement which may be ambiguous as to whether the suspect is asserting a right to remain silent, the interrogator may, but is not required to, ask questions to clarify and instead may continue questioning. State v. Speed, 265 Kan. at 37-38; State v. Morris, 255 Kan. 964, Syl. ¶ 4, 880 P.2d 1244 (1994). The defendant's statement that was all he had to say was not an unequivocal invocation of his right to remain silent. It could just have easily been interpreted as a statement that he had finished his explanation of the matter. At best, it was ambiguous. We conclude that the trial court did not err in failing to suppress the statements made by the defendant following this purported invocation.
II. Transferred Intent
The defendant next contends that the trial court erred in allowing the State to argue the theory of transferred intent to the jury. He argues that there was no evidence that he intended to kill anyone but the victim and, therefore, no evidence supporting the doctrine of transferred intent.
At the conference on instructions, the State requested that the trial court give an instruction on transferred intent. The State did not identify the applicable Pattern Instruction for Kansas (PIK) nor set forth the text of the requested transferred intent instruction during the instructional conference. However, the trial court immediately recognized there was no evidence in the case supporting such an instruction and denied the State's request. Argument about the merit of the instruction and the State's request that it be allowed to argue the contents of the instruction to the jury persisted for some five pages in the record. Ultimately, the court concluded that the State should be allowed to argue that the defendant would be guilty of first-degree premeditated murder whether the defendant meant to kill Herrera specifically, or simply meant to kill any of the teenagers in the group.
In its final argument to the jury, the State made the following argument:
"Trace the line of fire. Even if he was just shooting at the whole crowd of boys and not specifically Rogelio, if you believe that he intended to kill any one of those boys in [the] crowd, then under Kansas law you have to find him guilty of first degree [sic] for killing Rogelio. That's the doctrine of transferred intent, if you shoot at the crowd intending to kill any one of them, then that intent transfers over to the one that you did kill and you will see also in Instruction No. 6 that usually a person intends all the usual consequences of his voluntary acts."
PIK Crim. 3d 56.09 provides: "When a homicidal act is directed against one other than the person killed, the responsibility of the actor is exactly as it would have been had the act been completed against the intended victim." The trial court was correct in its conclusion that "[t]here is no evidence that he [the defendant] intended to shoot another particular person and missed that person and wound up hitting this person." Thus, the doctrine of transferred intent as set forth in PIK Crim. 3d 56.09 is not applicable to the facts in this case. See State v. Garza, 259 Kan. 826, 828-30, 916 P.2d 9 (1996).
The defendant argues that allowing the State to argue the doctrine of transferred intent in closing arguments when the doctrine did not apply was error. However, it is clear that the State in its final argument was not arguing the doctrine of transferred intent and did not clearly understand what that doctrine was. Instead, the State's argument was, "if you believe that [the defendant] intended to kill any one of those boys in [the] crowd, then under Kansas law you have to find him guilty of first degree for killing Rogelio." This is a correct statement of the law, for the defendant would, in fact, be guilty of first-degree murder whether he intended to kill Herrera specifically, or merely intended to kill any one of the teenagers in the group.
The instructions is this case were clear on premeditated murder as well as all lesser included charges. The jury was advised that statements of counsel were not evidence. We conclude that the mistaken use of the words "doctrine of transferred intent" in the State's final argument provides no basis for reversal of the defendant's conviction.
The defendant further argues that the State was essentially allowed to argue that second-degree unintentional murder, i.e. the firing of a gun into a crowd, would qualify as first-degree premeditated murder. However, it is clear that the State's argument to the jury was that even if the jury found that the defendant did not mean to kill Herrera but intended simply to kill any one of the boys in the group, it would qualify as premeditated first-degree murder. Contrary to the defendant's assertion, the State did not argue that the defendant could be convicted of first-degree premeditated murder if he merely fired a gun into a crowd without the intent to kill. Moreover, the trial court properly instructed the jury on second-degree unintentional murder in accord with K.S.A. 21-3402(b), which states that murder in the second degree is the killing of a human being committed unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.
We have held that, in summing up a case, a prosecutor may draw reasonable inferences from the evidence and is allowed considerable latitude in discussing the evidence. State v. Heath, 264 Kan. 557, 583, 957 P.2d 449 (1998). The argument by the State in the instant case is not contrary to the law or evidence although it is clear that the State did not fully understand the doctrine of transferred intent.
As a corollary to this argument, the defendant contends that if the State was to be allowed to argue transferred intent, the State should not have been allowed to introduce a picture of Herrera lying on the ground with brain and skull pieces scattered throughout the area. According to the defendant, the State's purpose in introducing the photograph was to show aim and, thus, with the argument of transferred intent, the photograph was without probative value. However, the State's main contention in this case was that the defendant aimed and intentionally killed Herrera. The fact that the State also sought to argue that even if he intended to kill just one of the group the defendant would still be guilty, does not change this main contention or diminish the probative value of the photograph. We find this contention without merit.
III. Prosecutorial Misconduct
The majority of the defendant's claims regarding prosecutorial misconduct relate to the State's closing argument. However, the defendant identifies two comments made by the State during voir dire and opening statement. During voir dire, the prosecutor asked the jury, "Does everybody know that Mr. McCorkendale is entitled to a jury trial even if he knows he's guilty?" There was no objection to this question. In its opening statement, the prosecutor mentioned that Herrera was "brutally murdered." The defendant objected on the basis that