State v. Stone

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,076

STATE OF KANSAS,
Appellant,

v.

JOSHUA L. STONE,
Appellee.


SYLLABUS BY THE COURT

1.
A contemporaneous objection to prosecutorial misconduct during closing
argument is not required in order to preserve the issue for appeal.

2.
In general, appellate review of an allegation of prosecutorial misconduct involving
improper comments to the jury follows a two-step analysis. First, the appellate court
decides whether the comments were outside the wide latitude that the prosecutor is
allowed in discussing the evidence. Second, the appellate court decides whether those
comments constitute plain error; that is, whether the statements prejudiced the jury
against the defendant and denied the defendant a fair trial.

3.
In the second step of the two-step analysis of an allegation of prosecutorial
misconduct, the appellate court considers three factors: (1) whether the misconduct was
gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part;
and (3) whether the evidence was of such a direct and overwhelming nature that the
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misconduct would likely have had little weight in the minds of jurors. None of these three
factors is individually controlling. Moreover, the third factor may not override the first
two factors unless the harmless error tests of both K.S.A. 60-261 (refusal to grant new
trial is inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 22,
17 L. Ed. 2d 705, 87 S. Ct. 824 reh. denied 386 U.S. 987 (1967) (conclusion beyond a
reasonable doubt that the error had little, if any, likelihood of having changed the result
of the trial), have been met.

4.
It is improper for the prosecutor to attempt to shift the burden of proof to the
defendant or to misstate the legal standard of the burden of proof.

5.
In general, prosecutors may not offer juries their personal opinions as to the
credibility of witnesses. Prosecutors have wide latitude, however, to craft arguments that
include reasonable inferences to be drawn from the evidence. That latitude includes
explaining to juries what they should look for in assessing witness credibility, especially
when the defense has attacked the credibility of the State's witnesses.

6.
The point of not allowing a prosecutor to comment on the credibility of a witness
is that expressions of personal opinion by the prosecutor are a form of unsworn,
unchecked testimony, not commentary on the evidence of the case.

7.
A dual standard is used when reviewing the suppression of a confession. In
reviewing a trial court's ruling on a motion to suppress a confession, the appellate court
3



reviews the factual underpinnings of the decision under a substantial competent evidence
standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The
appellate court does not reweigh evidence, assess the credibility of the witnesses, or
resolve conflicting evidence.

8.
When a defendant claims his or her confession was not voluntary, the prosecution
has the burden of proving by a preponderance of the evidence that it was voluntary. The
essential inquiry is whether the statement was the product of an accused's free and
independent will. The court looks at the totality of the circumstances surrounding the
confession and determines its voluntariness by considering the following nonexclusive
factors: (1) the accused's mental condition; (2) the manner and duration of the
interrogation; (3) the ability of the accused to communicate on request with the outside
world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in
conducting the interrogation; and (6) the accused's fluency with the English language.

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed August 20,
2010. Reversed and remanded with directions.

Ryan J. Eddinger, of Kansas Appellate Defender Office, argued the cause, and was on the brief
for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston,
district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

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ROSEN, J.: Joshua Stone was convicted of one count of aggravated indecent
liberties with a child. On appeal, he argues that the prosecutor's remarks during closing
argument amounted to prosecutorial misconduct denying him a fair trial. He also argues
that a tape recording of his interrogation should not have been admitted into evidence.

Stone was tried on one count of aggravated indecent solicitation of a child; two
counts of aggravated indecent liberties with a child, one of which alleged that he lewdly
touched the victim and the other of which alleged that he submitted to her touching; and
one count of criminal threat. The victim, 9-year-old A.L., spent the night of December
19, 2006, at the apartment of her mother's cousin. Stone is the cousin's stepbrother and
he was temporarily living there. A.L.'s mother and Stone had briefly been in a
relationship so he and A.L. knew each other. A.L. alleged that Stone woke her up, took
her into the living room where he slept on a futon sofa, instructed her to masturbate him,
put his hand on her "crotch," and then threatened to kill her if she told anyone.

The next day, A.L. did tell a 17-year-old babysitter. The babysitter told Stone's
stepsister and A.L.'s mother who, after first attempting to take matters into their own
hands, called the police. As a result, Stone was picked up by the Wichita police and
interrogated by Detective Kelly Mar. The interrogation began at approximately 1 a.m.
and was recorded (audio only). It lasted a total of about 1 hour and 40 minutes consisting
of two segments. During the first, Stone's personal history information was collected, he
was read and waived his Miranda rights, and he agreed to give a DNA sample. The
second 85-minute segment consisted of his interrogation by Detective Mar. The
intervening break was caused by the detective turning off the recording machine while
she swabbed Stone for the DNA sample. A redacted version of the recording was played
for the jury members, who were also allowed to follow along on a transcript. Stone
maintained his innocence throughout the interview; however, after he initially denied that
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anything happened, his account of the incident gradually expanded as the interview
progressed. Eventually, he made some incriminating statements, including that the victim
put her hand on his penis.

Prior to interviewing Stone, Detective Mar had interviewed A.L. That interview
was videotaped and the video was played for the jury in its entirety. The video was not
included in the record on appeal, but the audio portion of the interview was. A.L.
reported to Detective Mar that, during the event, sticky stuff came out of Stone's penis
and she wiped it on her pajama top. Despite not having the results of lab tests on the
pajama top, Detective Mar repeatedly told Stone during his interrogation that semen had
been found on the pajama top and he needed to explain how it got there. In fact, when lab
results were complete, no semen was detected on the pajama top.

The prosecutor opened her closing argument with the statement, "[A.L.] told you
what happened." She closed her summation with the statement, "[A.L.] told you what
happened. She showed you what happened. She is a credible witness." During the course
of her closing argument, she also told the jury:

"He [Stone] has two huge obstacles he has to overcome to present any kind of a
credible defense to you. The first obstacle that he has to overcome is that [A.L.] is so
credible.
. . . .
The other huge obstacle the defendant has to overcome is his confession."

The jury had deliberated for approximately a day before asking the court to view
again the videotaped interview of A.L. and to hear again portions of the tape recording of
the interrogation of Stone and the entire testimony of A.L. The jury wanted to hear the
portions of the interrogation "when the detective began telling the defendant he had
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semen on [A.L.]'s shirt, when the detective and Mr. Stone began talking about [A.L.]
actually touching him, one finger, two fingers and approximately the last quarter of the
interview." The trial court and attorneys determined that identifying specific portions of
Stone's interview on the tape was too difficult and that the entire interrogation should be
played again for the jury. The jury's two other requests were also granted.

After deliberating approximately 3 more hours, the jury informed the judge that it
was hopelessly deadlocked. The trial judge instructed the jury to return to the jury room
to ensure that it could not reach a verdict. According to the times noted in the transcripts,
2 minutes later, it returned with a guilty verdict on one count of aggravated indecent
liberties with a child and not guilty verdicts on the remaining charges.

The trial court departed from the mandatory 25-year sentence under K.S.A. 21-
4643, "Jessica's Law," and sentenced Stone to 61 months. Stone appealed. Jurisdiction is
in this court under K.S.A. 22-3601(b)(1), conviction of an off-grid crime.

PROSECUTOR'S CONDUCT

Stone complains that statements made by the prosecutor during closing argument
entailed improper comment on the credibility of witnesses and shifted the burden of proof
in the case to him, denying him a fair trial. He made no objection to the comments
during the closing argument, but a contemporaneous objection to prosecutorial
misconduct during closing argument is not required in order to preserve the issue for
appeal. State v. McReynolds, 288 Kan. 318, 322-23, 202 P.3d 658 (2009); State v.
Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).

"In general, appellate review of an allegation of prosecutorial misconduct involving
improper comments to the jury follows a two-step analysis. First, the appellate court
7



decides whether the comments were outside the wide latitude that the prosecutor is
allowed in discussing the evidence. Second, the appellate court decides whether those
comments constitute plain error; that is, whether the statements prejudiced the jury
against the defendant and denied the defendant a fair trial. State v. Albright, 283 Kan. at
428.
"In the second step of the two-step analysis, the appellate court considers three
factors: '(1) whether the misconduct was gross and flagrant; (2) whether the misconduct
showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct
and overwhelming nature that the misconduct would likely have had little weight in the
minds of jurors. None of these three factors is individually controlling. Moreover, the
third factor may not override the first two factors unless the harmless error tests of both
K.S.A. 60-261 [refusal to grant new trial is inconsistent with substantial justice] and
Chapman v. California, 386 U.S. 18, [22,] 17 L. Ed. 2d 705, 87 S. Ct. 824 reh. denied
386 U.S. 987 (1967) [conclusion beyond a reasonable doubt that the error had little, if
any, likelihood of having changed the result of the trial], have been met. [Citations
omitted.]' Albright, 283 Kan. at 428." McReynolds, 288 Kan. at 323.

Stone argues that the State's closing was improper for a combination of three
reasons. First, he argues that the State improperly attempted to shift the burden of proof
by arguing that he had significant "obstacles to overcome." He combines the second and
third reasons into one argument that the State improperly commented on the credibility of
the complaining witness by asking the jury to speculate on matters not in evidence when
it argued that her version was credible because if she had made up a story, she would
have made up a better one than the one she gave.

Shifting the Burden

It is improper for the prosecutor to attempt to shift the burden of proof to the
defendant or to misstate the legal standard of the burden of proof. See State v. Tosh, 278
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Kan. 83, 89-92, 91 P.3d 1204 (2004). In Tosh, a rape case, the prosecutor questioned the
jury in closing argument, "'"[I]s there any evidence that it didn't happen? Is there any
evidence that the things she told you didn't happen?"' 278 Kan. at 92. This court found
the questions an impermissible attempt by the State to shift the burden of proof to the
defendant. 278 Kan. at 92.

In this case, Stone contends that the State's argument that he had "obstacles to
overcome" amounted to the same kind of burden-shifting argument that occurred in Tosh.
The statements here, however, seem more akin to those made by the same prosecutor in
State v. Burden, 30 Kan. App. 2d 690, 46 P.3d 570 (2002), rev'd on other grounds 275
Kan. 934, 69 P.3d 1120 (2003). There, the Court of Appeals, in a decision written by
Judge (now Justice) Beier, considered the prosecutor's remarks in closing argument,
"'[T]he most overwhelming thing that the defense cannot overcome in this case is the
physical evidence that corroborates [the victim's] initial statements.'" 30 Kan. App. 2d at
703. The court characterized the comment as "inartful" but noted that the jury was
properly instructed on the burden of proof and concluded that "the prosecutor was not
attempting to shift the burden of proof to the defendant. Rather, she was within the
considerable latitude granted to prosecutors to comment on the weakness of
defenses. . . ." 30 Kan. App. 2d at 703.

Here, the prosecutor spent time in her argument reviewing the burden of proof
instruction with the jury.

"I want to go over some of the legal things with you. You know, the jury instructions
are the factors that you get of how to decide the case, and the first one that I'll talk about
is the burden of proof. These elements of the offenses that the judge has just read, those
are the things that must be proven beyond a reasonable doubt, those elements and only
those elements."
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Later in the argument, the prosecutor reviewed the instructions listing the specific
elements that must be proven beyond a reasonable doubt. This argument stands in
contrast to the argumentative questions posed to the jury by the prosecutor in Tosh,
implying that it was the defendant's burden to produce evidence to disprove the charges.

Credibility of Witness

"In general, prosecutors may not offer juries their personal opinions as to the
credibility of witnesses. Prosecutors have wide latitude, however, to craft arguments that
include reasonable inferences to be drawn from the evidence. That latitude includes
explaining to juries what they should look for in assessing witness credibility, especially
when the defense has attacked the credibility of the State's witnesses. State v. Scaife, 286
Kan. 614, 623-24, 186 P.3d 755 (2008)." McReynolds, 288 Kan. at 325.

"The point of not allowing a prosecutor to comment on the credibility of a witness is that
expressions of personal opinion by the prosecutor are a form of unsworn, unchecked
testimony, not commentary on the evidence of the case." State v. Pabst, 268 Kan. 501,
510, 996 P.2d 321 (2000).

Clearly, a few of the prosecutor's statements, taken in isolation, constitute
questionable prosecutorial argument. Her unqualified assertion that "A.L. told [the jury]
what happened," and "[s]he is a credible witness," standing alone, were undeniably
commentary on the credibility of her witness. But these comments were the brackets
around an argument that detailed for the jury the factors that it could and should consider
in determining the credibility of the witness. This argument included:

"How do you assess the credibility of the witnesses? The legal instructions tell
you you have the right to determine a witness' credibility about the subject a witness
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testifies about. You have a right to use your common knowledge and experience, so look
at yourself. You are men and women. You are different ages. You have different
occupations, moms, dads, whatever your occupations.
"How do you assess the credibility of people that you deal with every single day?
By eye contact, by the words that they use and what they are saying, by the context of the
situation and how they are describing things. Use this law and you will find—talk about
how credible [A.L.] is compared to him."

Placed in context, the prosecutor's statements on credibility appear to be her attempt to
summarize the conclusion to which an assessment of the evidence would lead the jury,
rather than unqualified assertions that the jury should simply believe the prosecutor's own
assessment of the witness.

The prosecutor's statements in this case continue to be "inartful" but within the
wide latitude allowed the State when discussing the evidence in closing argument. Even
if the court were to conclude that some or all of the comments were outside the latitude
allowed the prosecution, they do not require reversal under the second part of the
prosecutorial misconduct analysis. The conduct was not gross and flagrant, nor did it
demonstrate ill will on the part of the prosecutor. It must be noted, however, that the third
factor of this analytical step, "whether the evidence was of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the minds
of jurors," gives pause. Clearly, the jury in this case did not find the evidence to be
overwhelming. The trial judge recognized and commented on that fact in imposing a
departure sentence on Stone. Nonetheless, the prosecutor's comments in closing were not
so egregious as to warrant a conclusion that a new trial is required.


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STONE'S INTERVIEW STATEMENTS

Detective Mar's interrogation of Stone was recorded (audio only) and a transcript
of the recording was created. On October 5, 2007, the trial court conducted a Jackson v.
Denno hearing to determine whether the recording and transcript would be admissible at
trial. See Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). The
trial judge listened to the testimony of Detective Mar, as well as to the entire recording,
with the benefit of the transcript to follow as he listened. At the conclusion of the hearing,
he found the statements Stone made to the detective during the interview were made with
a full understanding of his rights and were voluntarily given. Ultimately, the jury heard a
redacted version of the recording twice and was allowed to follow along on a redacted
version of the transcript. Stone argues the recording and transcript should not have been
admitted into evidence.

A dual standard is used when reviewing the suppression of a defendant's
statements. In reviewing a trial court's ruling on a suppression issue, the appellate court
reviews the factual underpinnings of the decision under a substantial competent evidence
standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The
appellate court does not reweigh evidence, assess the credibility of the witnesses, or
resolve conflicting evidence. State v. Gant, 288 Kan. 76, 80, 201 P.3d 673 (2009); State
v. Johnson, 286 Kan. 824, 835-36, 190 P.3d 207 (2008).

When a defendant claims his or her statement was not voluntary, the prosecution
has the burden of proving by a preponderance of the evidence that it was voluntary. The
essential inquiry is whether the statement was the product of an accused's free and
independent will. The court looks at the totality of the circumstances surrounding the
statement and determines its voluntariness by considering the following nonexclusive list
of factors: "'(1) the accused's mental condition; (2) the manner and duration of the
12



interrogation; (3) the ability of the accused to communicate on request with the outside
world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in
conducting the interrogation; and (6) the accused's fluency with the English language.'
[Citation omitted.]" Johnson, 286 Kan. at 836. We have recognized that law enforcement
coercion can be mental or physical. State v. Jackson, 280 Kan. 16, 36, 118 P.3d 1238,
cert. denied 546 U.S. 1184 (2006).

K.S.A. 60-460(f) also governs the admissibility of confessions or statements by
the accused:

"In a criminal proceeding as against the accused, a previous statement by the accused
relative to the offense charged [is admissible], but only if the judge finds that the accused
(1) when making the statement was conscious and was capable of understanding what the
accused said and did and (2) was not induced to make the statement (A) under
compulsion or by infliction or threats of infliction of suffering upon the accused or
another, or by prolonged interrogation under such circumstances as to render the
statement involuntary or (B) by threats or promises concerning action to be taken by a
public official with reference to the crime, likely to cause the accused to make such a
statement falsely, and made by a person whom the accused reasonably believed to have
the power or authority to execute the same."

Stone argues that his lack of experience with law enforcement and the late hour of
the interrogation, combined with promises and deceptive practices by Detective Mar,
rendered his statements involuntary and not a product of his free and independent will.

Following the hearing, the trial judge made extensive findings on the record on
each of the six voluntariness factors set out above. He found there was no question
regarding Stone's ability to understand English and no reason to suggest that Stone's age,
23, or his intellect or background presented an obstacle to his understanding of the
13



interrogation proceedings. Stone has not argued that they did, nor have we uncovered any
reason to suspect those factors affected his statements.

Next the district judge reviewed the manner and duration of the interrogation. He
observed that at times the questions were tough or aggressive but did not find the tone of
the interrogation to be anything out of the ordinary. Nor did the length of the
interrogation, a little over 2 hours, present a problem of undue duress. He also found that
Stone made no requests to communicate with anyone outside of the interrogation and,
consequently, that factor simply did not apply. Again, Stone has not argued these issues,
and the tape recording of the interrogation supports the district court's findings.

The district court next considered Stone's mental condition at the time of the
interrogation. Stone argues that he was tired and confused due to the late hour of the
event, but the district court found that Stone had no difficulty in understanding and
responding to the detective's questions. The district court believed that Stone's claims of
exhaustion or confusion only correlated with tough questions by the detective but, in fact,
Stone repeatedly stated during the interview that he was tired. He mentioned having
worked 100 hours at his fast food job over the preceding 2 weeks, having a sore throat,
and having recently been to the hospital for an ankle injury. He told the detective early in
the interview that he becomes confused when under pressure, and this claim was born out
by the recording and transcript. His responses to the detective's questions were often
disorganized and garbled. He cried several times during the interrogation and became
audibly frustrated with the detective's repeated questioning.

The district court then reviewed the tactics used by Detective Mar during the
interrogation. Stone argues that Mar used deceptive tactics to confuse him and pressure
him into making incriminating statements. Specifically, the district court reviewed three
14



tactics used by Mar: insisting that Stone tell her "the truth," telling Stone that he needed
to appear cooperative to the prosecutor and the judge, and lying to Stone about the
presence of his semen on the victim's pajama top.

Repeatedly throughout the interrogation, Detective Mar exhorted Stone to tell the
truth or told him she was "just trying to get the truth." In context, it is clear that Detective
Mar was accusing Stone of lying when he repeatedly denied the accusations against him
and that "the truth," from the detective's perspective, was the victim's version of the
events. She combined this tactic with repeatedly telling Stone that she had confirmed the
presence of semen on the victim's pajama top and she was just trying to figure out how
Stone's semen got on the pajama top. While she did tell him that she had not yet matched
DNA from the pajamas to his DNA, it is clear from her statements that she had little, if
any, doubt that the two would match. In fact, she told Stone that she believed they would
match. She combined these two tactics with statements inferring that only confessing to
the crime would affect whether Stone went to jail or the length of his jail sentence.

The trial judge reviewed each of the three alleged deceptive practices individually,
citing case law to support his conclusion that each did not render Stone's statements
involuntary. With respect to the allegation that Mar unduly pressured Stone by repeatedly
insisting that he tell the truth, the court cited State v. Newfield, 229 Kan. 347, 623 P.2d
1349 (1981), for authority that encouraging the defendant to tell the truth is not
inappropriate. In Newfield, the issue was whether the defendant's statement should be
suppressed because he had invoked his right to counsel but had then confessed before
counsel was appointed or present. The interrogating officer in that case told Newfield
that the people of the town would think better of him if Newfield told the truth. Newfield
recites the well-worn rule that a "mere exhortation or adjuration to speak the truth, or the
mere suggestion to an accused that he confess, will not exclude a confession. [Citations
15



omitted.]" 229 Kan. at 359. But this rule was not essential to the decision in Newfield,
and the facts of the case are not similar to those presented here. The issue in Newfield was
more precisely whether the statement that the town would think better of the defendant if
he confessed carried an implied promise. There was no indication in Newfield that the
officers attempted to pressure Newfield into talking by repeatedly insisting that he
explain away nonexistent evidence as happened in this case. In this case, Mar's repeated
exhortations to Stone to tell the truth, combined with her insistence that Stone's semen
was on the victim's pajamas and that she needed an explanation for that, created
considerable pressure on Stone to come up with an explanation.

Next the trial court considered whether Detective Mar had made any promises to
Stone that would render his statements involuntary. The court focused on only one
statement in which Detective Mar told Stone:

"KM: [W]hy don't you think about what is—what is the judge and the [district attorney]
gonna think about how—how you can step up and be honest and tell the truth. That you
can be a man and step up and tell the truth. That speaks volumes. That's—that's
[unintelligible] important that has an opinion of you. Step up and be a man and tell the
truth."

The judge cites State v. Altum, 262 Kan. 733, 941 P.2d 1348 (1997), and State v.
Johnson, 253 Kan. 75, 853 P.2d 34 (1993), as authority for his finding that this statement
was not unduly coercive and did not render Stone's statements involuntary. Standing
alone, the statement approximates the statements at issue in both Altum (detective told
Altum if he stuck to his story, he was going to look foolish in court and the detective was
not going to be able to tell the judge or the jury that he cooperated in the investigation)
and Johnson (detective told Johnson he could not make any deals, he could only go to the
prosecutor and indicate whether Johnson was cooperating). We would agree with the trial
16



court's findings if there were nothing more in the transcript to question, but that is not the
case as we will demonstrate shortly.

Finally, the trial court considered the repeated statements by Detective Mar that
there was semen on the pajama top and her implications that the DNA sample taken from
Stone would match the DNA that would be pulled from the clothing. The trial court notes
that a "big part of the interview was the inference or assumption by both the interrogator
and Mr. Stone that there was semen on the clothes of the victim and that the semen was
available to be tested and analyzed. " In fact the substance on the pajama top could not
be confirmed to be semen, much less be matched to Stone.

The trial judge reviewed State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (1999),
and found that it stands for the rule that deceptive interrogation techniques do not
establish coercion but are one circumstance that must be viewed in conjunction with the
others present to assess the totality of the circumstances surrounding Stone's statements
and their effect on its voluntariness. Nonetheless, the district judge seems to conclude
that since Detective Mar sincerely believed that there was semen on the clothing, this
tactic could not be found to be unduly coercive.

The trial judge considered each of these interrogation techniques individually, but
there is no indication in the record that he considered the cumulative effect of these
techniques when taken as a whole, and it is in this regard that we believe the trial court's
review was lacking. A review of the recording and transcript establishes that the
combined effect was significant.

Shortly after the second part of the interview began, Detective Mar began asking
Stone to explain how his semen could have ended up on A.L.'s pajama top.
17




"KM: Okay, so, would there be any reason why she would have any of your DNA on
her?
"JS: Uh huh (neg.).
"KM: Would there be any way that any of your semen would be on her or on her
clothing?
"JS: No.
"KM: So, if I found semen on her clothing that she was wearing last night, no chance
it's yours?
"JS: No.
"KM: Okay. Any idea how she'd get semen on her clothing?
"J.S: But I wouldn't do it. I know huh—never mind, I'm to[o] tired to think.
"KM: I mean, would you know of any[ ]way that she's [sic] have semen on her
clothing?
"JS: No. Cause I know I wouldn't do nothing like this.
"KM: Okay.
"JS: I don't know how many times I have to sit here and say this.
"KM: Well, I'm—I'm just trying to figure out what happened. I mean it's not like—
"JS: I'm getting wrongly accused that's what it's getting down to the point.
"KM: Okay.
"JS: I'm getting wrongly accused of it. I'm tired."

As the interview continued, Mar continued to press for an explanation of how
Stone's semen could be on A.L.'s pajama top. Stone continued to deny wrongdoing and
even told the detective that it did not matter what he said, that she was apparently going
to say he did it regardless of what he said.

"JS: And I'm tired of it. I don't want to be accused of stuff anymore.
"KM: Okay. So why would she tell me this story?
"JS: Where is this leading to?
18



"KM: Well, I'm trying to figure out, okay, it's leading to I've got clothing that has
semen on it. Okay. I had a lab out at the house and they [luminoled] have you ever seen
that where they [luminol] a couch and then black light it? And if there's semen there it
shows up. And they found semen on the futon. Okay. I have a clothing that we
[luminoled] and I have semen on that clothing. Okay. And I'm gonna match, I'm gonna
run that semen with your DNA that I collected tonight through the lab. Now, what I'm
asking you is am I gonna get a match?
"JS: But see thing is I would not do nothing, I would not have nothing like that on the
clothing. And I did not do nothing with her.
"KM: Okay. So, you're saying that—that no way what happened what she's saying
happened happened last night?
"JS: Not even half of it.
"KM: Okay. So, am I gonna get a match?
"JS: _____if you do ____ you do __ because you know—
"KM: Okay. So, if I do—
"JS: [I]f you guys are going to do something—
"KM: —what I'm asking you, is explain to me Josh, how would your semen show up on
her clothing?
"JS: I did not do have her do nothing to me.
"KM: Okay. So, how—how is it that—that—that she's got semen on her clothing? I
mean there's no doubt that's what it is. Okay.
"JS: __________.
"KM: Cause we've already confirmed that—that's what it is. Now, we're just gonna do
the DNA pull the DNA from it _________. "

Shortly after this point, Detective Mar told Stone that "we need to get you some
help. We need to get you some counseling." Stone began asking her how confessing to
the crime was going to help him. He claimed he was being wrongly accused. Stone can
be heard crying on the tape and then told the detective that A.L. did get up in the night
and came over to the futon where he was sleeping to give him a hug. He said her hand
19



rubbed up against him and he pushed it away but he continued to maintain that he did not
have her do anything to him. The detective repeated the victim's story and continued to
question why Stone's version did not match the victim's. She continued to press him to
tell her what happened. Stone responded:

"JS: How many times do I have to tell you on this recorder that I—that I got woke up
and I was half asleep while I was sitting up and she bent over and gave me a hug.
"KM: Okay.
"JS: How many times I got to tell you that story?
"KM: But that's not answering my question. When I said—
"JS: How's that not answering your question.
"KM: I'm asking you are you saying that what she's telling us is just a big story?
"JS: I would not have a little girl touch me.
"KM: Okay. Is [A.L.] telling us a story?
"JS: I don't know _____ I don't know.
"KM: No, I don't believe she is. I think she's telling us the truth. Because she's very
precise about it and—and you know, I asked you to tell the story the same and your story
changes. Her story ________ and she's told ____________.
"JS: Cause my nerves are shot through the roof, okay?
. . . .
"KM: You're telling me that a nine year old [girl's] two little tiny fingers slipped down
your pants and grazed your penis and got a big gloop of semen.
"JS: Basically, what you're telling me is that I did do it.
"KM: I'm telling that that's exactly what happened. . . . And I, I'm pretty—I'm pretty
sure that she's telling me is the truth. And I also know that when I match the DNA off the
couch and off her shirt with the DNA from your mouth, it's all gonna match. All of it.
Because she's telling me the truth. So now, I'm just asking you to tell me the truth. Help
yourself. It's gonna help you because it's gonna show that you're not, you didn't prey on
her." (Emphasis added.)

20



The interrogation continued in this manner, with the detective telling Stone to "just
tell the truth" and Stone becoming increasingly frustrated and maintaining that he
believed he would be in trouble whether he told the truth or not.

"KM: So, she's lying? You're telling me she's lying?
"JS: How—how is to me every time I tell the truth that I know that I if that even if I
do say the truth then my ass ain't gonna go to jail how would that help her.
"KM: Because you messed her mind up. She ____ she trusted you. You're an adult.
Okay. It's gonna be helpful for her if we can tell her, you know what? He made a
mistake. He_____.
"JS: How is that going to cause me to go and get help too.
"KM: How, is not gonna help you to know that you've told the truth and that you've,
you know, that look at what happened.
"JS: How is that gonna keep me out of jail?
"KM: Huh? Nothing is going to keep you at this moment out of jail unless we can
figure out what's the truth. What is the truth. I've asked you. Is she lying? And you can't
answer that, because you know she's not lying.
. . . .
"JS: But how but what I want to know ma'am is why _____telling the truth _______
get help when it's gonna send me straight to where.
"KM: So, Josh, what you been telling me tonight's been a lie?
"JS: No, but —not all of it.
"KM: Well, I believe the part where you're sitting up is the truth.
"JS: But why, but why, but I wouldn't have little girl touching me on my—
"KM: I don't think, I don't think that you do that on normal basis. I think last night you
made a bad choice.
"JS: ____but—
"KM: Okay, You made a bad choice. So, you know what you step up and you take
punishment for being, making a bad choice, just like you __________.
"JS: How long I'm going to be in? (crying)
21



"KM: I don't know. Depends on how much you're willing to be honest about."
(Emphasis added.)

Shortly after this point in the interrogation, Mar told Stone to think about what the
judge and the prosecutor would think. Although he continued to deny that he had A.L. do
anything to him, he then told the detective that A.L. grabbed his penis and squeezed it.

"KM: Okay. So, she reached down and— 
"JS: Yes, ma'am.
"KM: —took a hold of your penis?
"JS: Yes, ma'am.
"KM: Okay. And having somebody holding your penis and she was moving up and
down cause she's made that motion hand motion with her hand, she was moving up and
down on your penis wasn't she?
"JS: Yes, she was.
"KM: Okay.
"JS: But I didn't have her do it."

Stone told Detective Mar that the touching lasted approximately 3 minutes during which
he told A.L. to stop. These turn out to be the most incriminating statements that Stone
made. Shortly after he made them, the detective terminated the interview.

As stated earlier, a dual standard of review applies to our review of the trial judge's
decision. First, we examine whether substantial competent evidence supports his
findings. In this case, substantial competence evidence does underlie most of his factual
findings, although the trial judge ignored the more egregious statements made by the
detective during the interrogation. Second, we review de novo the ultimate legal
conclusion made by the trial judge. It is on this point that we believe the trial court erred
as a matter of law in failing to look at the circumstances of the interrogation in totality.
22



The detective's repeated insistence that the truth could only be the version told by the
victim, combined with her unequivocal statements that there was semen on the victim's
pajamas and her belief that the DNA in it would match Stone's, followed by statements to
the effect that only confessing could keep him out of jail or affect the length of his jail
term made the circumstances unduly coercive. Moreover, a close examination of the
interrogation reveals that Stone did not volunteer facts but rather he adopted facts as they
were suggested to him by the detective and as her insistence that he tell "the truth"
became more adamant. For example, this exchange constituted the first point at which
Stone went beyond denying that anything at all had happened:

"JS: But see, I don't know why she would say this. I would never touch a little
kid.
"KM: Okay.
"JS: I wouldn't.
"KM: Do you sleep walk? I mean—
"JS: No, I don't. I know that for a fact.
"KM: Okay. I mean, would it be that she's just, I mean she—she misses her dad
and you said that she got very attached to you. Uh—did she maybe, I
don't know crawl into bed with you one night or last night was she, do you
remember when she came out to get a drink did she come over and give
you a hug or say anything.
"JS: One time—one time, she did come over and give me a hug.
"KM: Last night?
"JS: Yes. That's—that's it. But no, nothing like that else like that happened.
"KM: Okay.
"JS: I wouldn't do that and I would not even touch that little girl, let alone a little
kid."

23



Another tactic used by Detective Mar involved minimizing the seriousness of the
accusations against Stone and indicating that a confession would corroborate that he was
not a child sex predator:

"JS: But I wouldn't do that. I wouldn't.
"KM: I mean, it's not saying that you're a horrible person, it's saying that, you
know, you've been under a lot of pressure and you've been very tired like
you said, you know, it's—it's a release. That kind of sexual, you know, it's
just masturbation. It's not sex.
"JS: If I—if I had that kind of sex—sexual tension or whatever I wouldn't do that
with a little a minor or nobody. I would go and I would get myself a
girlfriend.
. . . .
"KM: There was no sex. I mean, she's not saying that you had sex with her but
that you just had her, just basically just jack you off. And that's, you know,
that's not a big deal. It's not, I mean it's not full blown sex. You know, it's
just—just a little hand job that's all.
"JS: But I wouldn't have a little kid do that.
"KM: Okay.
"JS: If I wanted to do it I'd do it in my damn my—myself.
"KM: Okay. But you never answered my question. So, is she lying?
"JS: Yes.
. . . .
"KM: I'm just wondering Josh, you know, it's— it's not like this is full blown sex,
okay. This is a hand job, alright.
"JS: Okay. But _that still don't matter
"KM: I mean, if that's what it was, that's what it was. Tell us the truth. I mean,
that's all we want to know.
"JS: —But—-I'll go to jail tonight. And I don't want to, I'm trying to keep
myself out of jail period.
"KM: Okay. So—
24



"JS: ___________.
"KM: —tell the truth. Okay. [A.J.] is nine years old. And we need to get her
some help. We need to get her some counseling. We need to get you
some help. We need to get you some counseling.
. . . .
"KM: Yeah, I understand. You know, Josh, I believe you—you know you're
telling me, you know, pieces of the truth. And I believe you want to tell me
you know.
"JS: But I didn't do it.
"KM: Well, I'm not saying that your—that you—you forced her. I'm just saying that
I mean she was—she came with you out to the living room willingly. I'm not
saying you forced her.
"JS: I didn't have her do nothing like that to me. And I wouldn't have no.
. . . .
"JS: Basically, what you're telling me is that I did do it.
"KM: I'm telling that that's exactly what happened. I think that you did pick her
up from her room, bring out into the couch, sat down on the couch, put her
hand around it and showed her and had her jack you off. Not because
you have a fetish or that you're preying or anything else, but it's somebody
different. It's somebody else helping you get gratification that you needed
because you're stressed out and over working and tired and everything
else. And I, I'm pretty—I'm pretty sure that she's telling me is the truth. And
I also know that when I match the DNA off the couch and off her shirt with
the DNA from your mouth, it's all gonna match. All of it. Because she's
telling me the truth. So, now, I'm just asking you to tell me the truth. Help
yourself. It's gonna help you because it's gonna show that you're not, you
didn't prey on her. You didn't force her. You didn't intentionally did this. It
was one of those, okay, you had a, you're tired, you're not feeling good,
you made a bad choice, a bad judgment. Okay. Or are you this guy that's
been preying on this little girl that took her and forced her to jack you off,
because you're just a—a pedophile that preys on little girls? So, help me
25



figure out what—what—what happened and what kind of a person are you.
Were you sick and tired, and you know what, you made a bad choice
because you needed some tension release. Or are you this person that
preys on these little girls that—that drags her in and gets your gratification
by little girls jacking you off?"

These statements cumulatively and strongly suggested to Stone that only confessing to
the "truth" as the detective saw it would save him from being painted as a "preying
pedophile" and, in turn, affect his sentence.

In State v. Swanigan, 279 Kan. 18, 106 P.3d 39 (2005), the defendant was accused
of robbing a convenience store. Before entering, the robber had put his hand to the
window and looked into the store. Swanigan was picked up several days after the robbery
and interrogated. During the interrogation, the officers repeatedly told Swanigan that his
fingerprints had been found on the window. After reviewing the tape recorded
interrogation, this court found "no express threats were uttered, but . . . evidence of
implied threats exist[ed] on the audiotape" and the implied threats were intertwined with
the officers' urgings that Swanigan cooperate. 279 Kan. at 26. The officers told Swanigan
that he needed to "'come clean'" in order to establish that he had not taken part in a
number of other crimes:

"'We just want to know your involvement in yours. That's all we want to know from you,
so that you don't get charged with all of them. Cause I honestly don't think you're
involved in all of them.'" 279 Kan. at 26.

This court found that the lies regarding the fingerprints were one circumstance that must
be considered along with others in the case including the police interrogation tactics, and
that the implication of negative consequences if Swanigan did not "cooperate" was
26



inconsistent with his rights articulated in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d
694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), and another circumstance to be
factored into the totality.

Although any one of these factors which Swanigan asserts—his low intellect and
susceptibility to being overcome by anxiety, the officers' repeated use of false
information, and their threats and promises—may not be sufficient to show coercion, the
combination of all of them in this case leads us to conclude as a matter of law that
Swanigan's October 31 statement was not the result of his free will, but was involuntary.
Swanigan, 279 Kan. at 39.

This case has much in common with Swanigan. While any one of the
circumstances surrounding this interrogation, standing alone—Stone's condition,
Detective Mar's misleading statements about the semen on the pajama top, her statements
that the length of his sentence could only be affected by his telling the "truth," the
implications he would be viewed as a sexual predator unless he confessed—might not
have led us to conclude Stone's statements were coerced, a review of the audio recording
taking into account all of these circumstances, as the law requires, leads us to conclude as
a matter of law that Stone's statements were not the product of his free and independent
will and that it was error to admit them at trial.

During deliberations, the jury asked to hear nearly the entirety of the evidence
again, focusing specifically on the portions of Stone's interrogation where he starts to say
that, while not at his behest, something did happen between himself and A.L. After
hearing that testimony again, the jury informed the court that it was deadlocked and could
not reach a verdict. Only after being sent back to the jury room did it return a verdict and
then only on one of the least serious of the four crimes with which Stone was charged—
the aggravated indecent liberties charge that alleged he submitted to her touching. Under
27



these facts, it is impossible to conclude beyond a reasonable doubt that the admission of
the statements Stone made during the interrogation were not key to the jury's verdict;
therefore, we must reverse that verdict and remand the case for a new trial at which the
statements made by Stone to Detective Mar are not admissible. See Arizona v.
Fulminante, 499 U.S. 279, 310, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991); Swanigan,
279 Kan. at 45-46.

The conviction is reversed and the case is remanded to the district court for a new
trial at which Stone's statements to the detective are not admissible.