State v. Nichols

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NOT DESIGNATED FOR PUBLICATION

No. 115,609


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANTHONY STEPHEN NICHOLS,
Appellant.


MEMORANDUM OPINION

Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed June 16, 2017.
Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Barry K. Disney, senior deputy county attorney, Barry Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before BRUNS, P.J., HILL and SCHROEDER, JJ.

Per Curiam: The issues raised in this appeal focus on the search of Anthony
Stephen Nichols' cell phone and the admissibility of his statements to the police. The
police search was conducted according to a clearly worded search warrant and was
proper. Even though the two police interviews were several hours apart, Nichols'
statements were voluntary and admissible. Serving a 51-year sentence for attempted first-
degree murder, Nichols asks us to overturn his conviction. Our review of the record
reveals no errors and we affirm Nichols' conviction.

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The police questioned Nichols after two men were shot and killed.

John Burroughs was found dead in his home in Manhattan, Kansas, in September
2013. Burroughs had suffered multiple stab wounds to his chest and neck and a gunshot
wound in the right side of his face. The next day, Junction City police responded to a
report of a gunshot. At that scene, they found Anthony Nixon dead from a gunshot
wound to his head. For various reasons, the investigation focused on Nichols as the killer
of both Burroughs and Nixon. About 4 days later, the police arrested Nichols in Kansas
City, Kansas.

The officers took Nichols to a police station in Wyandotte County. Police Officer
Patricia Giordano and Detective Brek Jager began interviewing Nichols. At the start of
the interview Nichols said he knew his rights and recited them from memory. He was
read his Miranda rights anyway and filled out a waiver-of-rights form. The interview
began at 11:20 a.m. Around 1 p.m. the police obtained a search warrant for Nichols'
apartment, cell phone, and the contents of the cell phone. Officer Giordano told Nichols
the officers were going to search the home and asked to continue talking with Nichols
after the search. While the officers searched, another officer transported Nichols to
Junction City.

During the search of Nichols' apartment the police discovered a gun which would
later be identified as the gun that shot Burroughs. Several cell phones were also
recovered. A later search of the contents of the cell phone revealed two potentially
incriminating messages. At the conclusion of the search Officer Giordano returned to
Junction City to interview Nichols.

Officer Giordano and Detective Josh Brown conducted the interview in Junction
City. Officer Giordano began the Junction City interview by reminding Nichols that she
told him she would return to talk with him. Nichols appeared alert, conscious, and
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capable of making rational decisions. Giordano did not ask and Nichols did not
specifically waive his Miranda rights at the beginning of this interview. The officers
questioned Nichols about the gun that was found at his residence. Nichols admitted that it
was the murder weapon and that he had possessed the weapon. Officer Brown inquired
further into how Nichols came to possess the gun and Nichols responded, "I don't want to
talk about it now." After this statement, the police questioning continued along other lines
of inquiry.

The State charged Nichols with the premeditated first-degree murder of
Burroughs. Two pretrial motions are relevant to this appeal: a motion to suppress
Nichols' statements and a motion to suppress the search of the contents of Nichols' cell
phone.

At the hearing on his motion to suppress his statements, Nichols argued:

 He did not voluntarily waive his Miranda rights at the first interview;
 the statements made at the Junction City interview were involuntary
because he did not waive his Miranda rights; and
 his statement of "I don't want to talk about it now" was an invocation of his
right to remain silent and statements after that point were inadmissible.

The district court denied both motions.

In denying the motion to suppress Nichols' statements, the court found that
Nichols had shown he understood his rights by reciting them from memory as Officer
Giordano read the rights aloud. In the court's view, Nichols' recitation showed that he was
in such a condition that his waiver was voluntary.

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The district court also decided that a second waiver was not necessary because the
rights waiver from the Kansas City interview applied to the Junction City interview, since
it was basically a continuation of the Kansas City interview. Finally, the district court
found the statement, "I don't want to talk about it now" was not an unambiguous
invocation of the right to remain silent.

Next, concerning the search of Nichols' cell phone, he argued the search warrant
was invalid. Specifically, Nichols argued the lack of a "search protocol" within the
warrant showed probable cause did not exist to search the contents of the cell phone. No
additional evidence was presented at the hearing. The district court simply found
probable cause to search the contents of the cell phone existed based upon the affidavit in
support of the search warrant. With such reasoning, the district court denied the motion to
suppress the results of the search of Nichols' cell phone.

At the close of evidence at the trial, the State moved to amend the complaint from
first-degree murder to attempted first-degree murder. The court granted the motion.
Ultimately, the jury found Nichols guilty of attempted first-degree murder.

We find no impropriety in the search of Nichols' cell phone.

Nichols' argument on this point is not a model of clarity. To the trial court, he
contended the results of the cell phone search should be suppressed because the search
warrant had no "search protocol." We take that to mean the warrant did not specifically
describe what portion of the cell phone would be searched and how it was to be searched.
At the motion hearing, Nichols referred to an example from federal court as an
illustration of his point. But to us, Nichols contends that the search warrant did not permit
the search of the digital contents of his cell phone.

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Nichols' entire argument can be summarized by his statement: "Nothing in the
original warrant, authorizing a search of Mr. Nichols' apartment, authorized a search of
the digital contents of the cellphone."

Our review of the record reveals that this assertion is false. The warrant
specifically permits the search of:

"Electronic devices capable of transmitting electronic data, media, or other information,
and the information contained therein, including, but not limited to: Call logs, to include
incoming, outgoing and missed calls, Phonebook and contacts to include phone numbers,
and e-mail addresses SMS (Text) / MMS (Multimedia) messages and attached
multimedia files, to include incoming and outgoing[.]" (Emphasis added.)

The emphasized language from the search warrant, which authorized the search of
Nichols' apartment and the seizure of Nichols' cell phone, clearly permitted a search of
the cell phone's contents.

The district court found the affidavit attached to the warrant supported probable
cause to search the contents of the cell phone. Nichols does not raise any argument
against the court's determination of probable cause. We must point out that an issue not
raised before this court is deemed abandoned. State v. Williams, 303 Kan. 750, 758, 368
P.3d 1065 (2016). Thus, Nichols has abandoned any argument concerning the district
court's determination of probable cause.

In our view, the search of Nichols' cell phone and the later admission of the
contents into evidence was proper. We see no error here.




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The trial court properly admitted Nichols' statements to the police.

On appeal, Nichols primarily argues about his invocation of the right to remain
silent. But he also touches on the need for a second waiver of his rights before the police
interview in Junction City. On the issue of the waiver from the first interview, Nichols
only provides brief, conclusory statements.

Therefore, we hold that Nichols has waived any issue about his initial Miranda
rights waiver. The failure to support an argument with adequate authority or, in the
absence of authority, reasons why the position is correct is akin to failure to brief an
issue. State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158 (2015). Here, Nichols has not
supported any argument concerning the initial Miranda waiver with any pertinent
authority. Therefore, that part of the issue is waived.

Turning to the suppression of his statements made to the police in Junction City,
we will review the district court's factual findings for substantial competent evidence and
the ultimate legal conclusion will be reviewed de novo. State v. Gibson, 299 Kan. 207,
215-16, 322 P.3d 389 (2015).

Nichols argues that because Officer Giordano did not obtain a waiver of Nichols'
rights under the Fifth Amendment to the United States Constitution at the Junction City
interview, those statements are inadmissible. A brief review of the law is helpful at this
point.

The Kansas Supreme Court has held that after a voluntary waiver of rights has
occurred there is no automatic requirement to repeat the Miranda warnings at successive
interviews. State v. Boyle, 207 Kan. 833, 841, 486 P.2d 849 (1971). The district court
here found the waiver at the Kansas City interview was voluntary, and Nichols has really
not challenged that finding on appeal. Whether a second waiver is required at a
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successive interview is based on the specific circumstances. State v. Bridges, 297 Kan.
989, 1003-04, 306 P.3d 244 (2013). We review the relevant factors here.

Factors that have been considered in determining whether additional waivers are
required are: the passage of time between interviews; whether the suspect was in police
custody the entire time; whether anything affected the suspect's understanding of his or
her rights in the intervening period; and whether the same persons were conducting both
interviews. See State v. Nguyen, 281 Kan. 702, 724, 133 P.3d 1259 (2006); State v.
Davis, 268 Kan. 661, 678, 998 P.3d 1127 (2000).

The factual findings of the district court are not in dispute and are supported by
substantial competent evidence. Officer Giordano ended the Kansas City interview by
asking Nichols to talk with him at the conclusion of the search. Nichols was transported
to Junction City. Approximately 6 hours and 50 minutes after the Kansas City interview
ended, Officer Giordano and Detective Brown began the Junction City interview without
obtaining a second Miranda rights waiver.

Primarily, Nichols relies on the length of time that passed between the conclusion
of the Kansas City interview and the beginning of the Junction City interview to show a
second waiver was required. Even though the appellate briefs contend a different amount
of time passed, we have no doubt that a period of 6 1/2 hours, or a few minutes more,
passed between the interviews. The record shows the Kansas City interview ended
around 1 p.m. and the Junction City interview began between 7:45 p.m. and 7:50 p.m. on
the same day.

Our research reveals that other courts have upheld the admission of statements
without a second waiver where a similar amount of time passed between a first and
second interview. See State v. Mattox, 280 Kan. 473, 491-92, 124 P.3d 6 (2005). In
Mattox, a defendant was warned of his Miranda rights at 5:30 p.m. and waived those
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rights at 7:30 p.m. Around 12:55 a.m., the police conducted a second interview with the
defendant in which he gave a statement. The court held as a matter of law that a second
waiver was not required based just upon the 5-1/2 hour gap between the waiver and the
second interview. 280 Kan. at 491.

Other courts have held that gaps of time from a few minutes up to an entire day do
not require a second waiver. See Bridges, 297 Kan. at 1003. In Bridges, only minutes
passed between the interview including a waiver and a second waiver. In United States v.
Andaverde, 64 F.3d 1305, 1313 (9th Cir. 1995), the court held: "Under the circumstances
here, the one-day interval between Miranda warning and waiver and [defendant's]
October 28 statement to [law enforcement] was not unreasonable." While time between
the two interviews is something to consider in deciding whether a second waiver is
required, there is no indication here that the almost 7-hour gap would require a second
waiver. See Mattox, 280 Kan. at 491.

Other factors lead us to conclude that a second Miranda rights waiver was not
necessary here because the second interview was a continuation of the first. We note that
at the end of the Kansas City interview, Officer Giordano asked to return to talk with
Nichols at the conclusion of the search. The Junction City interview began with Officer
Giordano referring back to her statement about returning from the search. This shows
clearly that the Junction City interview was simply a continuation of the Kansas City
interview and not an entirely different custodial interview. Thus, the original waiver
would attach to the second interview. See Boyle, 207 Kan. at 841.

The fact that at least one of the same officers, Officer Giordano, was present at
both interviews also suggests that the interview was a continuation of the first interview.
In Davis, 268 Kan. at 678, the court gave consideration to the fact that the confession was
given during a juvenile detention center intake interview which was conducted by a
different person than the police officer that initially obtained the Miranda waiver. The
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confession was admissible, and the fact that a different person had conducted the
interview did not require a second waiver. The holding in Davis shows a second waiver
was not required here because Officer Giordano was present at both interviews, which
would indicate the waiver from the first interview extended to the second interview. See
268 Kan. at 678.

While it is true that Nichols was in custody during both interviews, nothing in the
record shows that Nichols' understanding of his rights changed during the time between
the interviews. See Nguyen, 281 Kan. at 723.

We hold that the trial court drew the proper legal conclusion from its findings.
Under Boyle and the cases which followed, in the absence of reasons to rule otherwise,
there is no requirement to obtain a second Miranda waiver at successive interviews after
an initial voluntary waiver had been obtained. See Boyle, 207 Kan. at 841. Nichols does
not challenge the initial waiver on appeal. There was no need for the police to obtain a
second waiver in this case, and the district court did not err by admitting Nichols'
statements.

We are not convinced Nichols invoked his right to silence.

Nichols also challenges the admission of those statements that were given after
what he argues was an invocation of his right to remain silent. When a person invokes his
or her right to remain silent the police must scrupulously honor that request. Michigan v.
Mosely, 423 U.S. 96, 104, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). But there must be a
clear invocation of the right.

The law is well settled on this point. In order for questioning to immediately cease,
the invocation of the right to remain silent must be unambiguous. Berghuis v. Thompkins,
560 U.S. 370, 381-82, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010). The test to determine
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whether a person has invoked his or her right to remain silent is whether a reasonable
officer would believe a person has unambiguously invoked the right. State v. Aguirre,
301 Kan. 950, 957, 349 P.3d 1245 (2015).

The timing and context of the statement is important to the analysis. In State v.
Appleby, 289 Kan. 1017, 1051, 221 P.3d 525 (2009), the court recognized that context is
important in determining whether a statement is an unambiguous request for assistance of
counsel. The United States Supreme Court, in Thompkins, 560 U.S. at 381, stated:
"[T]here is no principled reason to adopt different standards for determining when an
accused has invoked the Miranda right to remain silent and the Miranda right to
counsel."

Statements given after an alleged invocation cannot be considered in determining
whether a person has invoked a right to silence. Smith v. Illinois, 469 U.S. 91, 100, 105 S.
Ct. 490, 83 L. Ed. 2d 488 (1984). In other words, the fact that a person continues to talk
after potentially invoking the right to silence has no bearing on whether there is an
unambiguous invocation of the right. State v. Cline, 295 Kan. 104, 114, 283 P.3d 194
(2012). We will now examine Nichols' claim of such an invocation here. Context is
important.

Fairly early in the second interview, the officers told Nichols they had found a gun
after searching his apartment. Shortly thereafter, the following exchange occurred:

"ANTHONY NICHOLS: I don't have no problems with [Anthony Nixon], I keep telling
you that, I had no problem with Anthony.
"PATRICIA GIORDANO: Then why did he get shot?
"ANTHONY NICHOLS: I can't tell you that.
"PATRICIA GIORDANO: Then why do you have the murder weapon?
"ANTHONY NICHOLS: I have the murder weapon because I came back and got it.
"PATRICIA GIORDANO: Came from where to where?
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"ANTHONY NICHOLS: I came back from Kansas City to get the fucking murder
weapon.
"PATRICIA GIORDANO: From who?
"ANTHONY NICHOLS: I can't tell you that.
"JOSH BROWN: You knew it was a murder weapon when you picked it up?
"ANTHONY NICHOLS: Yes, I did. . . .
. . . .
"PATRICIA GIORDANO: I just want to hear your side of the story, don't you—
"ANTHONY NICHOLS: I did not shoot this man. Believe what you want.
"JOSH BROWN: What did you do?
"ANTHONY NICHOLS: I got the murder—
"JOSH BROWN: What did you do?
"ANTHONY NICHOLS: I went and got the fucking murder weapon.
"JOSH BROWN: Tell me—tell me how it played out.
"ANTHONY NICHOLS: I don't want to talk about it now.
"JOSH BROWN: You don't have to give names. You don't have to give names.
"ANTHONY NICHOLS: I came back here, I came back and got the mother fucking
murder weapon after the mother fucker did it. I did see who did it, I was around there in the
fucking area, true."

Officer Giordano testified that she did not believe that Nichols' statement "I don't
want to talk about it now" was an invocation of his right to remain silent. The district
court agreed with Officer Giordano and found that the statement was not an invocation of
the right to remain silent. In the court's view, the statement was an answer to Officer
Brown's request to discuss how Nichols obtained the murder weapon.

Clearly, there is no hesitancy in Nichols' answering the officer's questions after
this. Based upon the transcript and Officer Giordano's testimony, there is substantial
competent evidence for the district court's conclusion.

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The district court's legal conclusion is reviewed de novo. Gibson, 299 Kan. at 215-
16. Thus, our inquiry turns to whether a reasonable officer would believe the statement,
"I don't want to talk about it now," was an invocation of the right to remain silent.

The cases offer some guidance. In State v. Fritschen, 247 Kan. 592, 606-07, 802
P.2d 558 (1990), the Supreme Court held the statement, "'I don't want to talk about it
anymore, it hurts too much,'" did "not even reach the level of a potentially ambiguous
request to remain silent; [the suspect] was saying he was upset and having difficulty
talking." In other words, it was a comment on his emotional condition—not a request to
end the questioning.

Similarly, in State v. Holmes, 278 Kan. 603, 619, 102 P.3d 406 (2004), the court
determined the statement, "'I think I'll just quit talking, I don't know,'" was ambiguous
because it could mean the defendant did not want to inform the police of details at that
moment, but the defendant was unsure of whether to continue talking or not.

In contrast, the Supreme Court held in Aguirre that the statement, "'This is—I
guess where I, I'm going to take my rights," was an unambiguous invocation of the right
to remain silent. 301 Kan. at 955, 959. The court held that in the context it was "crystal
clear that Aguirre was attempting to stop answering questions and leave the
interrogation." 301 Kan. at 960. Aguirre also stated he would return to talk with the
police after returning a person to their family. The court construed this statement to
reinforce Aguirre's desire to end the interrogation at that point. 301 Kan. at 960.

In our view, the statement here is similar to the statements in Fritschen and
Holmes, which were ruled to be admissible. Nichols' statement is very similar to the
statement in Fritschen. However, in Fritschen the statement included the phrase, "it hurts
too much," which factored into the court's determination that the statement was not an
invocation of the right to remain silent. 247 Kan. at 606-07.
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Also, Nichols' statement is similar to the facts in Holmes. Nichols saying that he
did not want to talk about it now provides some ambiguity about whether he wanted to
invoke his right to remain silent—similar to how the language "I don't know" provided
ambiguity in Holmes. See 278 Kan. at 619. However, the word now could also indicate
Nichols wanted to remain silent at that point similar to the reasoning in Aguirre. See 301
Kan. at 959-60. Based upon this caselaw, Nichols' statement was not an unambiguous
invocation of the right to remain silent.

More importantly, the context in which the statement was given illuminates its
meaning. Looking at the context of Nichols' statement, we find it reasonable for an
officer to interpret Nichols' statement as an answer to the prior question and not an
invocation of the right to remain silent. Officer Brown had asked Nichols to discuss the
details of how Nichols obtained the gun, and Nichols responded, "I don't want to talk
about it now." In the context of the questions and answers prior to Nichols' statement, it
appears Nichols was answering Detective Brown's question and not invoking the right to
remain silent. Nichols proceeded to answer additional questions about other subjects with
no apparent hesitancy.

Nichols' statement is not an unambiguous invocation of the right to remain silent.
The admission of his statements was not erroneous.

Affirmed.