IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 92,544
STATE OF KANSAS,
Appellee,
v.
AKIRA T. BROWN,
Appellant.
SYLLABUS BY THE COURT
1. When analyzing a trial court's decision to deny suppression of a confession, an appellate court reviews the factual underpinnings of the decision by the substantial competent evidence standard and the ultimate legal conclusion by the de novo standard. An appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.
2. The voluntariness of a confession must be determined under the totality of the circumstances.
3. The State has the burden of proving that a confession is admissible, and the required proof is by a preponderance of the evidence.
4. The essential inquiry in determining whether an accused's confession is voluntary is whether the statement was the product of the accused's free and independent will. Numerous factors are to be considered, including: (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.
5. In considering the factor of whether the manner and duration of the interrogation causes an accused's free will to be overborne, the fact that delays during an interrogation are legitimate or justified do not erase concern over whether the length of time of an interview is so excessive as to be coercive.
6. While isolation from the outside world can be a factor in making an interrogation coercive, it is to be expected that police will take steps to limit the ability of potential witnesses and suspects to communicate and, potentially, conspire during an investigation.
7. If an extrajudicial confession has been extorted by fear or induced by hope of profit, benefit, or amelioration, it will be excluded as involuntary. However, the advice or admonition to the accused to speak the truth, which does not import either a threat or benefit, will not make a subsequent confession incompetent, involuntary, and inadmissible.
8. In order to render a confession involuntary as a product of a promise of some benefit to the accused, including leniency, the promise must concern action to be taken by a public official; it must be such that it would be likely to cause the accused to make a false statement to obtain the benefit of the promise; and it must be made by a person whom the accused reasonably believes to have the power or authority to execute it.
9. Deceptive interrogation techniques alone do not establish coercion. The false information must be viewed as a circumstance in conjunction with additional police interrogation tactics.
10. When an out-of-court statement includes a statement made by another declarant and both statements are offered for the truth of the matter stated, both levels of hearsay must meet the requirements of a hearsay exception.
11. K.S.A. 60-404 provides that no verdict shall be set aside based upon the erroneous admission of evidence unless an objection was timely interposed and stated so as to make clear the specific ground of objection.
12. Generally, constitutional grounds for reversal are subject to the contemporaneous objection rule, and objections raised for the first time on appeal are not properly preserved for appellate review.
13. An exception to the general rule that an objection based upon constitutional grounds must be timely interposed is recognized when consideration of the newly asserted claim is necessary to serve the ends of justice or to prevent a denial of fundamental rights.
14. Issues related to confrontation under the Sixth Amendment to the United States Constitution or the Kansas Constitution Bill of Rights, § 10 raise questions of law over which this court exercises de novo review.
15. A testimonial out-of-court statement offered for the truth of the matter asserted cannot be used against a criminal defendant unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant. Factors to be considered in determining whether a hearsay statement is testimonial include: (1) Would an objective witness reasonably believe such a statement would later be available for use in the prosecution of a crime? (2) Was the statement made to a law enforcement officer or to another government official? (3) Was proof of facts potentially relevant to a later prosecution of a crime the primary purpose of the interview when viewed from an objective totality of the circumstances, including circumstances of whether (a) the declarant was speaking about events as they were actually happening, instead of describing past events; (b) the statement was made while the declarant was in immediate danger, i.e., during an ongoing emergency; (c) the statement was made in order to resolve an emergency or simply to learn what had happened in the past; and (d) the interview was part of a governmental investigation; and (4) was the level of formality of the statement sufficient to make it inherently testimonial; e.g., was the statement made in response to questions, was the statement recorded, was the declarant removed from third parties, or was the interview conducted in a formal setting such as in a governmental building?
16. Statements made by an unidentified emotional bystander to another bystander within minutes of a shooting are not testimonial because the statements were not made under circumstances which would lead an objective witness to reasonably believe that the statements would be available for use at a later trial, the inquiring bystander did not intend to seek testimony, the statements were not made to a law enforcement officer or other government official, and the statements lacked the formality of testimony.
17. Generally, this court reviews a trial court's determination that hearsay is admissible under a statutory exception for an abuse of discretion. This standard includes a review to determine that the discretion was not guided by erroneous legal conclusions. In other words, the trial court's discretion must have been exercised in light of a correct understanding of the applicable law.
18. Under the excited utterance provision of K.S.A. 60-460(d)(2), an event or condition must have occurred, the event must be sufficiently startling to show that the declarant perceived it, and the declarant must have made the statement while under the stress of nervous excitement.
19. The excited utterance exception has the characteristic of spontaneity arising either from the reaction to contemporary perception or from the excitement which carries over from the event.
20. K.S.A. 60-261 provides that an error in the admission of evidence will not be grounds for reversing a conviction unless affirming the conviction is inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
21. A determination of relevance is the first step in analyzing if evidence is admissible. Unless otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible.
22. Because relevancy is a matter of logic and experience, the determination of relevancy is generally seen as inherently discretionary. A trial court's discretion must be guided by the considerations imposed by prior case law and by the rules of evidence.
23. Evidence that a defendant is a gang member or is associated with gang-related activity may be material and, therefore, relevant when the evidence provides a motive for an otherwise inexplicable act, forms a part of the events surrounding the commission of the crime, or shows witness bias.
24. A trial court must instruct the jury on a lesser included offense where there is some evidence which would reasonably justify a conviction of the lesser offense. If the defendant requests the instructions, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive. However, the duty to so instruct arises only where there is evidence supporting the lesser crimes. An instruction on a lesser included offense is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented.
25. To prove heat of passion voluntary manslaughter, a killing must be intentional and there must have been legally sufficient provocation. The test of the sufficiency of the provocation is objective, not subjective. The provocation, whether it be sudden quarrel or some other form of provocation, must be sufficient to cause an ordinary person to lose control of his or her actions and his or her reason. Such provocation must be more than mere words or gestures and, if assault or battery is involved, the defendant must have a reasonable belief that he or she is in danger of great bodily harm or at risk of death.
26. While evidence of the motive of a third party to commit the crime, standing alone, is not relevant, such evidence may be relevant if there is other evidence connecting the third party to the crime.
27. A district court judge must evaluate the totality of facts and circumstances in a given case to determine whether the defense's proffered evidence effectively connects the third party to the crime charged.
28. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.
Appeal from Sedgwick district court; CLARK V. OWENS II, judge. Opinion filed December 7, 2007. Affirmed.
Carl F.A. Maughan, of Maughan & Maughan, LC, of Wichita, argued the cause, and Sarah Ellen Johnson, of Kansas Appellate Defender Office, was with him on the briefs for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, J.: Akira Brown was convicted of first-degree premeditated murder after James Cooper died of a single gunshot wound to the head. According to the prosecution's theory, the shooting was motivated by animosity between rival street gangs. Several eyewitnesses identified Brown as the shooter and, after several hours of interrogation, he confessed. In defense arguments to the jury, Brown's attorney suggested police focused on Brown as the suspect within a few minutes after the shooting and, consequently, ignored evidence pointing to other suspects. Further, defense counsel argued Brown's confession was coerced.
On appeal, Brown raises several issues. We first consider his argument that his confession was not voluntary. The fact that Brown was handcuffed to a table for a 12-hour span during which several periods of interrogation occurred makes the issue of voluntariness a close question. An examination of the totality of the circumstances, however, leads us to the conclusion that Brown's free will was not overborne and his confession was freely and voluntarily given.
Next, we consider whether the admission of several hearsay statements violated Brown's right to confrontation and whether the statements met any hearsay exceptions. Applying Davis v. Washington, 547 U.S.__, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006), and Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), we conclude the statements, which were made at the scene shortly after the shooting by an unidentified emotional bystander to one of approximately 200 other bystanders, were not testimonial and, therefore, did not violate the Confrontation Clauses of the United States Constitution and Kansas Constitutions. Further, we find that all but one of the statements were properly admitted under a hearsay exception, specifically the excited utterance exception. See K.S.A. 60-460(d)(2). One statement was not properly admitted, however, because it was double hearsay and a foundation was not laid for the included statement. This error does not require reversal of Brown's conviction, however, because there were other eyewitness identifications of Brown as the shooter and because Brown confessed to being the shooter, making the evidence cumulative and the error harmless.
We find no merit to Brown's remaining arguments. We conclude that the trial court did not commit error in admitting gang evidence because the evidence tied Brown and the victim to rival gangs and the evidence of the rivalry provided a motive for an otherwise inexplicable crime. Additionally, we conclude there was not an evidentiary basis for giving a voluntary manslaughter instruction as a lesser included offense because the evidence was that Brown interjected himself into the fight that preceded the shooting, there was no showing of prior animosity between Cooper and Brown, and the fight that preceded the shooting would not have placed a reasonable person in Brown's position in fear of great bodily harm or at risk of death. Next, we conclude the trial court did not err in refusing to admit speculative testimony tending to suggest a third party committed the shooting because there is no evidence actually tying an alleged third party to the crime. Finally, we reject Brown's request to find cumulative error requiring reversal of his convictions.
Facts
The rivalry that formed the basis of the State's theory of the case was between the Bloods and Junior Boys gangs. The Junior Boys gang, which consists of "older" gang members, has two subsets formed of younger members: the Second Street Junior Boys and the Hill Block Junior Boys. Officer Espinoza, a gang intelligence officer, testified that tension between the Bloods and Junior Boys had resulted in several violent incidents separate from the current crime. Espinoza mentioned gang intimidation, various forms of "disrespect," shootings, and murder. History had shown that verbal confrontations between a Blood and a Junior Boy could easily escalate into physical violence when gang members "back-up" fellow members.
The victim of the shooting in this case, James Cooper, was a member of the Bloods. Shortly after midnight on January 11, 2003, Cooper and his girlfriend, Cecilia Arnold, joined several Bloods gang members at "The Cave" nightclub in Wichita. Members of the Hill Block and Second Street Junior Boys gangs, including Brown who is a member of the Hill Block gang, were also present at "The Cave."
When the nightclub closed around 2 a.m., a crowd estimated to number "a couple hundred" exited onto the streets and sidewalks around the club. Several fights broke out in the crowd.
According to Arnold, she and Cooper prepared to leave in Arnold's car when Terrell Cole–a member of the Second Street gang (one of the Junior Boy subsets and a rival gang to Cooper's gang)–ran in front of the car, chasing two persons while holding a gun. The couple got out of the car because Cooper wanted to tell the others to "quit tripping" or calm down. Arnold testified that Cooper basically followed Cole and told him to stop fighting and put away the gun, saying, "We all kicked it. We all had fun. Let's call it a night." Arnold indicated that, although she did not see the gun anymore, Cole kept a "cocky" and "bodacious" attitude toward Cooper. Cooper told Cole he would remember how Cole was acting. Arnold was not certain where Cole went after the conversation with Cooper, but she thought he "kind of mingled off into the crowd."
Cooper's cousin Bruce Berry had walked up at some point during the confrontation, and he also spoke to Cooper. Then, Arnold and Cooper, holding hands, started to walk away but stopped when they saw a commotion in the crowd. A single shot rang out, and the bullet struck Cooper in the back of his head causing a fatal wound.
Arnold told police that, although she did not actually see the shooting, she believed the shooter was Cole. When asked where she had stood talking with Cooper and his cousin Berry, Arnold testified that they stood "in the middle of Second Street," near the nightclub at Second Street and Mosley.
Russell Hunt was also in the crowd of people exiting the nightclub. According to his testimony, he observed the altercation occurring in the road at Second Street and Mosley. Hunt first saw three to four individuals "jumping" one man on the ground. Then, Hunt saw a man pull a handgun out of the waistband of his pants, point it toward the middle of Second Street, and fire a single shot. Hunt described the man as wearing a cream-colored shirt. He stated the man was standing beside a tree. After taking cover and then seeing that someone was hit, Hunt called 911 and helped clear the way for an ambulance.
Hunt talked to an officer about what he had seen. As he did so, he noticed another man standing there, looking "very distraught." After he finished talking to the officer, Hunt asked the bystander what was wrong. Hunt testified that the bystander told him "That's my cousin" and "They said Lovey shot him." Although Berry was identified as Cooper's cousin, the bystander who talked to Hunt was never identified. Police knew Brown was nicknamed "Lovey," and other eyewitnesses identified Brown as "Lovey."
Later, after reviewing a photographic lineup, Hunt identified Brown as the shooter.
Another eyewitness was Devon Brown (who will be referred to as Devon to avoid confusion with the defendant Brown). Devon testified she actually saw Brown fire the shot. Devon was at the nightclub, and she saw Brown there earlier that evening. Devon testified that she had gone to the same high school as Brown and had no difficulty recognizing him. She also knew him as "Lovey." When the club closed, Devon attempted to drive away from the scene on Second Street but saw an altercation in the middle of the crowded street. Next, Devon saw two men walking backwards as if one was trying to break up an argument and "he was pushing his friend away from the altercation." Devon and her passenger got out of the car to see if they recognized anyone in the midst of the fight. Devon saw Brown step out from a tree, raise a gun, and fire a shot in the direction of the fight. After Brown fired the gun, he took off running eastward on Second Street.
Berry, who had talked to Cooper just before the shooting, also identified Brown as the shooter. Berry testified that he saw Brown inside the nightclub on the night of the incident and described him as wearing a cream-colored shirt. After the club had closed, Berry started to pull away in his car but then got out to carry on two separate conversations, one of which included Cooper and Cooper's girlfriend Arnold. Berry had finished talking to the couple and turned to go back to his car when he heard a gunshot coming from behind. He ducked and ran toward his car. Berry testified that as he put his foot inside the car, he turned to see Cooper lying on the ground. According to Berry, he saw Brown standing near a tree, holding a gun. Then, he saw Brown run eastward on Second Street with the gun held down to his side.
Police dispatch notified patrol officers to be on the lookout for a suspect nicknamed "Lovey." Officers checked Brown's known addresses and eventually went to a recent address at an apartment complex. Around 3:17 a.m., a vehicle drove into the parking lot and officers saw the passenger was a black male wearing a "tan" shirt. The passenger was Brown.
Brown was placed in custody and taken to the police station, where he was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). He was handcuffed to a table and held in an interrogation room for approximately 12 hours during which he was interrogated periodically by two detectives for a total of approximately 5 hours. During breaks in the interrogation, Brown napped, was given restroom breaks, and was allowed to eat.
Brown's version of events changed numerous times over the course of his interview. At first, he said that he stood outside the club talking to a woman he called "Dee," noticed a few fights, and then heard some "gunshots." Brown told the detectives he was standing next to a car on the north side of Second Street at the time of the shooting. He indicated that Dee left with him in the car immediately thereafter.
When Detectives James Hosty and Timothy Relph told Brown that eyewitnesses placed him in a different location–in the middle of a fight–he initially said that Dee and two men were with him at the scene and would verify his story. Brown's interview was put on hold for approximately 3 hours and 15 minutes while these three witnesses were located and interviewed at the station. Then, Detectives Hosty and Relph returned to their interview with Brown.
The officers informed Brown that they had spoken to the three individuals, but none had verified anything he had previously told them. At first, Brown continued to say he was with the three others, but then his story changed. Eventually, he told the officers that he saw a large black male, a possible gang member, outside of the club fighting and that the fight moved out into the street. Although Brown said he did not know the man's name, he identified Cole, through a photo, as the person involved in the altercation. Brown admitted that the two men he had earlier identified were not with him during the shooting, but stated that he was walking down Second Street when the shots were fired.
In another version of events, Brown said "Big 2," later identified as Cole, handed an unknown black male a handgun and the unknown male shot Cooper in the middle of the street. Then, Brown changed his story to state that the unknown male was actually Adrian Patterson, also known as "A1." He told the officers that he stood close to Patterson along with Cole next to the fight and that Patterson was the person who shot Cooper.
At another point in the police interview, Brown said that while Cole was arguing with Cooper, Cole handed Patterson a gun and when Patterson raised the gun, Brown put his hand on the gun in an attempt to stop the shooting just as the gun fired. Finally, when the officers told Brown that witnesses saw only one person holding a gun, not three, he began to cry and admitted that he was the one who fired the gun.
Analysis
1. Voluntariness of Confession
Before trial, Brown filed a motion to suppress his statements to police officers. The trial court conducted a hearing and, after reviewing the video recording of the police interview, found there was no evidence indicating that Brown's will was overborne. In reaching this determination, the court observed that Brown was advised of his Miranda rights, waived those rights, and agreed to speak with the officers. Also, Brown was 21 years old at the time of the interview, appeared to be a person of reasonable intelligence, and had previous exposure to the criminal justice system. As for the officers' interrogation techniques, the trial court found they were not overly aggressive and the officers did not promise Brown anything or threaten him in any way. Further, although Brown was held in the interrogation room for nearly 12 hours and was handcuffed to the table, the actual interview time totaled just under 5 hours. And in the periods between questioning, during which the officers stopped to investigate various aspects of the case based on information gleaned from Brown, it appeared that Brown was napping. Brown was also given breaks to use the restroom and to eat a meal.
Standard of Review
When analyzing a trial court's decision to deny suppression of a confession, an appellate court reviews "the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard." An appellate court does not, however, "reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence." State v. Harris, 284 Kan. 561, Syl. ¶ 9, 162 P.3d 28 (2007); State v. Ackward, 281 Kan. 2, Syl. ¶ 1, 128 P.3d 382 (2006); State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005).
It is well established that voluntariness of a confession must be determined under the totality of the circumstances. The State has the burden of proving that a confession is admissible, and the required proof is by a preponderance of the evidence. The essential inquiry is whether the statement was the product of the accused's free and independent will. 284 Kan. at 579; State v. Gonzalez, 282 Kan. 73, 103, 145 P.3d 18 (2006). Numerous factors are to be considered when determining if a statement was voluntary, which this court has consolidated into the following list based on previous Kansas case law:
"(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." State v. Walker, 283 Kan. 587, 596-97, 153 P.3d 1257 (2007).
Totality of the Circumstances
Mental State. Brown does not specifically argue that his mental state played a part in impeding the voluntary nature of his confession. At trial, Brown presented evidence he had some drinks at "The Cave" nightclub, but the officers testified that Brown did not appear to be under the influence of alcohol. The interrogation videos show that Brown's responses were appropriate for the questions asked, and there is no indication in the record that he was under the influence of drugs or alcohol.
Duration and Manner. As previously indicated, the length of Brown's confinement to the interrogation room, while handcuffed to a table for long periods of time, causes the issue of voluntariness to be close. Granted, there were legitimate reasons for delay while Brown's version of events were investigated. However, the legitimacy of or justification for the delays does not erase the concern over whether the length of time of confinement in the interview room while handcuffed to a table was so excessive as to be coercive. Nor can such reasons be a license for law enforcement to extend interviews to such an excessive length that a suspect's will is overborne. On the other hand, it would be inappropriate for us to draw a bright line and state a specific time period where an interrogation becomes inherently coercive solely because of its duration. But see Ashcraft v. Tennessee, 322 U.S. 143, 153-54, 88 L. Ed. 1192, 64 S. Ct. 921 (1944) (36-hour interrogation inherently coercive).
The trial court made a distinction between the number of hours of confinement and the number of hours of interrogation. Certainly, as part of the totality of the circumstances the differentiation is a consideration. See United States v. Lopez, 437 F.3d 1059, 1063-64 (10th Cir. 2006) (Tenth Circuit Court of Appeals' enumeration of factors regarding voluntariness of confession include [1] the age, intelligence, and education of the defendant; [2] the length of detention; [3] the length and nature of the questioning; [4] whether the defendant was advised of his constitutional rights; and [5] whether the defendant was subject to physical punishment). Decisions from other states distinguish between the time of interrogation and the time of detention, considering such factors as whether significant breaks in questioning occurred or, in other words, whether the pressuring was unrelenting. See, e.g., State v. Agnello, 269 Wis. 2d 260, 273-74, 674 N.W.2d 594 (Wis. App. 2003) (discussing issue of duration and collecting cases where time of detention ranged from 8 hours to 7 days).
While the overall length of detention cannot be ignored, we have concluded that statements were voluntary when similar lengths of time were involved. See Walker, 283 Kan. at 596-97 (upholding statements as voluntary where defendant was held for almost 13 hours and confessed to committing crime after about 8 hours); Ackward, 281 Kan. at 8 (upholding statements as voluntary where defendant's interrogation lasted 8 or 9 hours); State v. Grissom, 251 Kan. 851, 919-20, 840 P.2d 1142 (1992) (confession voluntary where defendant was handcuffed the entire time during an 8-hour interview, with breaks for meal time and restroom); State v. William, 248 Kan. 389, 409-10, 807 P.2d 1292, cert. denied 502 U.S. 837 (1991) (upholding statements as voluntary where defendant was interrogated for approximately 6 hours over a 19-hour period).
The time period of the detentions involved in the Kansas cases cited above and the 12 hours in this case stretch to the temporal boundaries of an uncoercive interrogation. We cannot say, however, that under the circumstances of this case–where breaks were taken, Brown was allowed to leave the room for short periods, and he napped–the duration and manner of the interview were coercive.
Outside Contact. Next, Brown contends he was denied contact with the outside world. Brown points to three occasions during the interrogation when he asked if he could make a phone call, and his requests were denied. He focuses on the third instance, where Detective Relph told Brown he could either tell the officers what happened or make a phone call, "but [the two were] not tied together." Brown takes this comment out of context and argues that the comment implied a warning not to bring a lawyer into the negotiations with the officers. When the statement is examined in context, this implication is nonexistent.
Detective Hosty explained at trial, "[W]e were talking about who was doing the shooting and he comes out of the blue asking about the phone call, and we didn't want him to misunderstand that [it] was a deal for anything." We further note that when Brown asked Officer Espinoza, who had looked in to check on him during one of the breaks, to contact Brown's foster mother about the situation, Espin