IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 83,276
STATE OF KANSAS,
Appellee,
v.
TODD MILLER DEAL,
Appellant.
SYLLABUS BY THE COURT
1. A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge or indicated the substance of the expected evidence by questions indicating the desired answers.
2. The trial court may declare a mistrial when prejudicial conduct makes it impossible to proceed with the trial without injustice to the defendant. K.S.A. 22-3423(1)(c). Declaration of a mistrial is a matter entrusted to the trial court's discretion, and the decision will not be set aside on appeal unless abuse of discretion is clearly shown. The defendant has the burden of proving that he or she was substantially prejudiced.
3. In Kansas, absent stipulation by the parties, the results of a polygraph test are inadmissible in a criminal proceeding. Likewise, reference to a defendant's refusal to submit to a polygraph test is also inadmissible. Mere mention of the word "polygraph," however, is not grounds for mistrial.
4. The admission of photographs of a decedent, including photographs taken during an autopsy, is not error when they are relevant to matters in issue, such as the cause and manner of death, and aid the understanding of a pathologist's testimony. The admission of such evidence is within the trial court's discretion.
5. Aiding a felon is a separate criminal offense proscribed by K.S.A. 21-3812. It is not error to refuse an instruction thereon when the accused has not been charged with that crime and it is not a lesser included offense of the crimes of which he or she has been charged.
6. The prosecution has the burden of proving whether a confession or admission is admissible. K.S.A. 22-3215(4). On appeal, an appellate court will not reverse a determination that a confession or admission was freely, voluntarily, and intelligently given or that it was or was not custodial if there is substantial competent evidence to support the determination.
7. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), prevents the prosecution from using statements, whether inculpatory or exculpatory, stemming from a custodial interrogation, unless the prosecution proves that procedural safeguards were used to secure the waiver of defendant's privilege against self-incrimination. These safeguards include informing the person in custody, before interrogation, of his or her right to remain silent, right to speak with an attorney, and right to have an attorney present during questioning. If the person asks for an attorney, then all questioning must cease until the attorney is present.
8. The first question in an analysis of whether a violation of a person's right to remain silent occurred is whether the individual was subjected to a custodial interrogation or whether it was merely an investigatory interrogation. Miranda warnings are not required for noncustodial questioning; they are required for custodial questioning. An objective standard is used to judge whether an interrogation is custodial. The proper analysis is how a reasonable person in the suspect's position would have understood the situation. A custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way. An investigatory interrogation, on the other hand, is the questioning of a person by a law enforcement officer in a routine manner in an investigation that has not reached the accusatory stage and where such person is not in legal custody or deprived of his or her freedom in any significant way.
9. The admission or exclusion of hearsay evidence is within the sound discretion of the trial court.
10. Despite being hearsay, a statement may be admissible if the judge finds it was made (1) while the declarant was perceiving the event or condition which the statement narrates, describes, or explains, (2) while the declarant was under the stress of nervous excitement caused by such perception, or (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.
11. The Confrontation Clause of the Sixth Amendment to the United States Constitution operates in two ways when determining the admissibility of hearsay statements. First, the Sixth Amendment establishes a rule of necessity. In the usual case, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Second, once a witness is shown to be unavailable, the witness' statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred where the evidence falls within a firmly rooted hearsay exception. If the evidence does not fall within a firmly rooted hearsay exception, the evidence must be excluded absent a showing of particularized guarantees of trustworthiness.
12. Subject to K.S.A. 60-477 evidence that a person committed a crime or civil wrong on a specified occasion is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and K.S.A. 60-448, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Appeal from Miami district court; STEPHEN D. HILL, judge. Opinion filed June 1, 2001. Affirmed.
Debra J. Wilson, assistant appellant defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.
David L. Miller, county attorney, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
ABBOTT, J.: This is a direct appeal by the defendant, Todd Miller Deal, from his conviction for premeditated first-degree murder. He was sentenced to life imprisonment, with no possibility of parole for 25 years.
Deal raises seven issues. The salient facts will be set forth under the individual issues.
The victim, Aubrey Phalp, was spending the night at her father's house. Her parents were divorced. Her father did not wake her in the morning, and when he attempted to wake her later in the day, he discovered the bedroom door was locked. Upon opening the door, he discovered Phalp was gone and that a bedroom window was open. A few days later, Phalp's body surfaced along the shore of Hillsdale Lake in Miami County, Kansas. Her body had a heavy tow chain wrapped around her ankles. The chain belonged to Deal. Phalp had had problems with J.R. Waters, who had beaten her and held a knife to her throat. Apparently, there were some threats made that if she went to the police, harm would occur to her.
After Phalp's body was discovered, the police interviewed various people. Deal was interviewed on August 6, 1998, the day after the body was found. Deal denied having seen Phalp recently and denied any knowledge of her disappearance. A videotape of the interview was shown to the jury, and it was allowed to take the videotape and equipment to a jury room during deliberations. Deal told the police he had heard Phalp had run away from home. He stated that he had been in Independence, Missouri, with a friend, Shaun Garrett, visiting Jesse Cook and returned home on August 3, after Phalp had disappeared. He denied being at Hillsdale Lake in the prior 2 months and denied any knowledge of Phalp's death.
Jason Cook was interviewed and stated that Deal had come to visit him on August 5 (the day the body was discovered), and Deal told Cook that "he was around when someone got seriously hurt." He did not say he had killed anyone or that anyone had been killed. In an attempt to get Deal to make incriminating statements, Cook was equipped with a body pack transmitter and met with Deal. The conversation was monitored by police and was tape-recorded. The audio tape was played for the jury. During the conversation, Cook asked Deal, "So you and Shaun seriously did kill her?" Deal replied, "Seriously, I'm not gonna answer that." Later in the conversation, Cook said to Deal, "I didn't think you'd ever be able to do something like that." Deal responded, "It's pretty evident you thought wrong." Deal then talked about leaving town and saying goodbye to Cook's brother, Jesse. The following conversation then took place:
"[JASON COOK]: Why'd you pull fucked up shit man?
"[DEAL]: I can't tell you Jason.
"[JASON COOK]: Alright, but you do know you pulled some major fucked up shit.
"[DEAL]: Well, I had it planned so perfectly.
(cell phone ringing)
"[DEAL]: So perfectly.
"[DEAL]: I had it planned so perfectly, Jason. I shouldn't have put it on Jesse."
Deal was later interviewed and stated that he had lied about where he was on the night Phalp was killed. He then told the police he was in the park smoking marijuana. He allowed the police to search his truck where they found the chain hook that went with the chain wrapped around Phalp. Seventeen days later, Deal was arrested for Phalp's murder.
K.B.I. Agent George Johnston testified that he interviewed Deal on January 11, 1999. During the interview, Deal stated that on August 2, he and Garrett were at Garrett's house, and they decided to go to Hillsdale Lake to use Garrett's parents' boat. The two went in Garrett's car, got a chain, a 30-pack of beer, and left for the lake. Deal told Johnston that they left at 9 p.m. Deal and Garrett saw Phalp walking along 87th Street in Lenexa. She wanted to go with them; they agreed and headed for the lake. Because they had taken the wrong keys, however, they could not get the boat out of the storage garage. Deal, Garrett, and Phalp decided to go to the lake and smoke marijuana. Garrett told Deal that he wanted some private time with Phalp, so she and Garrett left.
Deal told Johnston that Garrett came back about 45 minutes later and said, "We got a problem, Aubrey's dead." Deal said that Phalp was sitting in the front passenger's seat slumped over. Deal picked up her arm with his foot, raised it up, and let if fall against the side of the car. Deal told Johnston that at the time he believed that Phalp was either dead or "extremely unconscious." Garrett told Deal to help him get rid of her and threatened to harm Deal and his family. Deal and Garrett drove the car up to the pier, wrapped the chain around Phalp's neck, and pulled her out of the car by the chain. Then they pulled her to the pier's walkway, picked her up, and carried her to the end of the pier. Garrett unwrapped the chain from her neck and tossed it to Deal, who then wrapped it around her legs. Garrett lifted Phalp up as Deal wrapped the chain around her ankles. Deal and Garrett then put her up on the cement railings of the pier and dropped her over the side into the water.
Deal also told Johnston that prior to Garrett and Phalp leaving together, he had given Phalp a karate kick to her stomach because she had been harassing him. His kick caused her to double up and fall to the ground.
At trial, Cook testified that Deal told him that he had killed a girl by strangling her and had dumped her body in Hillsdale Lake. Deal also told Cook that he had wrapped chains around the victim's ankles to hold her down. Deal wanted Cook to be his alibi. Cook further stated that Deal told him that "they had killed Aubrey."
Jesse Cook also testified at trial that a few days after Phalp's body was found, Deal told him that he had strangled a girl and dumped her body in Hillsdale Lake. Deal later admitted to Agent Johnston that he had told Jesse that he had killed Phalp in the hopes that Jesse would be an alibi for Garrett and him.
Ron Hunke testified at trial that he worked with Garrett and that on Monday, August 3, 1998 (the day after the victim was killed), Garrett told Hunke, "We don't have to worry about that dumb bitch anymore."
I. VIDEOTAPE INTERVIEW OF GARRETT
Deal argues that the trial court erred in refusing to admit Garrett's videotaped interview.
At trial, Deal's defense was that Garrett killed Phalp without his knowledge or assistance and then forced him to help dispose of her body. Johnston testified that he interviewed Deal on January 11, 1999. Johnston testified that Deal told him that he and Garrett were driving around on August 2 and saw Phalp on 87th Street in Lenexa. Phalp went to Hillsdale Lake with Deal and Garrett. The three of them smoked marijuana and drank beer. Deal told Johnston that Phalp and Garrett wanted to be alone and left together. After about 45 minutes, Garrett returned and told Deal that Phalp was dead and insisted that Deal help get rid of the body.
In addition to Johnston's testimony, Deal offered the videotaped statement, given by Garrett on August 6, 1998, to the K.B.I. The purpose of admitting the videotape, according to Deal, was to show the "state of mind and thought process" of Garrett. The State objected to the videotaped statement on the grounds that it constituted hearsay. The State further advised the court of its intention to prosecute Garrett. Garrett invoked his Fifth Amendment right and was, therefore, not available for cross-examination. The trial court sustained the State's objection.
On appeal, Deal specifically argues that he hoped to show the jury that Garrett was lying about his whereabouts on the night of August 2.
The State argues that Deal failed to preserve this issue for appeal, as Deal failed to make a proffer of the videotaped testimony as required by K.S.A. 60-405. In attempting to admit the videotaped testimony, the following took place:
"[COUNSEL FOR DEAL]: It's my understanding that the State's objection to this videotape being played in its entirety is becausethis is Defendant's Exhibit 2. It's the videotaped statement of Shaun Garrett. It's approximately the same length as Todd Deal's. We believe that it should be admissible to show his state of mind and his thought process. He's not available to testify in this matter. That's something we're aware of. We're trying to get his statement in through his videotape.
"THE COURT: I take it that this is a statement made by Garrett to the KBI?
"[COUNSEL FOR DEAL]: Yes, sir, on the same day that Todd Deal's statement was taken.
"[PROSECUTOR]: Your Honor, it's clear that this is hearsay. This is a statement of a party who is not present and will not be present or available to testify. There's no hearsay exception I can find or Mr. Moriarty has indicated that exists that would allow the playing of this videotape under these circumstances. The State objects to the playing of any portion of that videotape.
"THE COURT: Your reply, Counsel?
"[COUNSEL FOR DEAL]: I won't say anything additional.
"THE COURT: I'll sustain the objection. It will not be admitted. It will be made part of the record."
K.S.A. 60-405 sets forth the rules regarding the erroneous exclusion of evidence and states:
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers."
Failure to make a proffer of excluded evidence precludes appellate review. See Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 741, 822 P.2d 617 (1991) (argument that evidence was improperly excluded will not be considered for the first time on appeal where no proffer was made pursuant to K.S.A. 60-405); Marshall v. Mayflower Transit, Inc., 249 Kan. 620, 623, 822 P.2d 591 (1991) (in order to preserve the issue for appeal, proffer must contain the substance of the excluded testimony); Kearney v. Kansas Public Service Co., 233 Kan. 492, 499, 665 P.2d 757 (1983) (no reversible error where no proffer was made of excluded evidence pursuant to K.S.A. 60-405); Querry v. Montgomery Ward & Co., Inc., 217 Kan. 104, 111-12, 535 P.2d 928 (1975) (consideration of excluded evidence is beyond review of the appellate court where no proffer is made to trial court); State v. Nix, 215 Kan. 880, 884, 529 P.2d 147 (1974) (refusing to consider whether there was error in excluding evidence where there was no proffer made); Salem v. Salem, 214 Kan. 828, 831-32, 522 P.2d 336 (1974) (argument that evidence was not considered by court could not be considered on appeal because a proper proffer was not made to trial court).
Deal made no proffer regarding the substance of the videotaped interview with Garrett. Deal did state the purpose of the proposed testimony but did not divulge the substance of the testimony as required by K.S.A. 60-405. On appeal, he argues that the testimony would have shown that Garrett lied about his whereabouts on the night Phalp died. This argument was not made before the trial court. The purpose of making a proffer to the trial court is to allow it to make an evidentiary decision based on the substance of the testimony. On appeal, we then have the opportunity, if it is argued by a party, to consider whether the trial court's decision was an abuse of discretion. Without a proffer, however, this court cannot consider whether evidence was improperly excluded because there is no basis to consider whether the trial court abused its discretion.
II. VIDEOTAPED TESTIMONY SHOWING DEAL'S
REFUSAL TO TAKE A LIE DETECTOR TEST
Deal argues that the trial court erred in refusing to grant a mistrial after the State introduced videotaped testimony showing Deal's refusal to take a lie detector test.
The trial court may declare a mistrial when prejudicial conduct makes it impossible to proceed with the trial without injustice to the defendant. K.S.A. 22-3423(1)(c); see State v. Rice, 261 Kan. 567, 591, 932 P.2d 981 (1997). Declaration of a mistrial is a matter entrusted to the trial court's discretion, and the decision will not be set aside on appeal unless abuse of discretion is clearly shown. State v. McClanahan, 259 Kan. 86, 92, 910 P.2d 193 (1996); State v. Bagby, 231 Kan. 176, 179, 642 P.2d 993 (1982). If reasonable persons could differ regarding the propriety of the trial court's action, it cannot be said the trial court abused its discretion. State v. Brown, 249 Kan. 698, Syl. ¶ 10, 823 P.2d 190 (1991). The defendant has the burden of proving that he or she was substantially prejudiced. State v. Massey, 242 Kan. 252, 264, 747 P.2d 802 (1987).
Over objections, the trial court allowed the jury to view the August 6, 1998, videotaped interview of Deal by Agent Carmack and Detective Talcott. During the playing of the videotape interview the following took place:
"[AGENT CARMACK]: If, uh, down the road here you were asked to take a polygraph test . . . what are your feelings on that?
"[DEAL]: Polygraphs? You mean a lie detector test? I don't want to take a lie detector test."
During a break from the playing of the videotaped interview, the following took place between counsel and the court:
"[COUNSEL FOR DEAL]: In addition to those other comments about the polygraph, I couldn't tell if he said no or yes. There should be a cautionary instruction if not a mistrial on that part.
"[PROSECUTOR]: I don't know that the jury needs to be alerted to that again. It didn't have any detrimental effect and wasn't incriminating or exculpatory. There wouldn't be any further reference to that through any other witnesses nor will there be any witness who testifies about whether there was any followup on that issue. I couldn't hear what he said either. I think he said he would.
"THE COURT: I believe he said he would. That was just my hearing of it."
The entire court has carefully reviewed the videotape and unanimously agree that the tape clearly states: "I don't want to take a lie detector test." Admittedly, we were all alerted to what was coming, and we were listening carefully to see what was said. Obviously, defense counsel, the prosecutor, and the judge, who did not know what was coming, did not clearly hear what was said. There is no evidence that any of the jurors heard the statement or, if so, what they understood it to mean.
In Kansas, absent stipulation by the parties, the results of a polygraph test are inadmissible in a criminal proceeding. State v. Wise, 237 Kan. 117, 124, 697 P.2d 1295 (1985); accord State v. Lassley, 218 Kan. 758, 760, 545 P.2d 383 (1976). Likewise, reference to a defendant's refusal to submit to a polygraph test is also inadmissible. See State v. Webber, 260 Kan. 263, 276, 918 P.2d 609 (1996) (refusal to submit to polygraph examination or the offer to do so is inadmissible); State v. McCarty, 224 Kan. 179, 182, 578 P.2d 274 (1978) (noting that it is the rule in Kansas that a refusal to take a polygraph test is not admissible into evidence); State v. Roach, 223 Kan. 732, 734, 576 P.2d 1082 (1978) (testimony that defendant refused a polygraph test is inadmissible); State v. Emory, 190 Kan. 406, 410, 375 P.2d 585 (1962) (it was reversible error for trial court to admit evidence that the defendant refused to take a lie detector test as the evidence prejudiced the substantial rights of the defendant).
Mere mention of the word "polygraph," however, is not grounds for mistrial. State v. Green, 245 Kan. 398, 406, 781 P.2d 678 (1989); State v. Ulland, 24 Kan. App. 2d 249, 259, 943 P.2d 947 (1997).
Deal objected to the reference of the mention of the polygraph examination in the videotaped testimony. The objection was not made immediately following the statement but was made during a break after the viewing of the videotape. A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. State v. Sims, 265 Kan. 166, 174, 960 P.2d 1271 (1998).
During the discussion of the objection, the parties were very careful not to elaborate on the "polygraph" issue. There was no other mention of polygraph throughout the remainder of the trial. Deal never requested a cautionary instruction prior to the case being submitted to the jury. Deal has failed to show substantial prejudice by the isolated reference to the polygraph examination.
The trial court did not abuse its discretion in denying the motion for a mistrial. The single mention of the polygraph test, although inappropriate, did not prejudice Deal or require a new trial.
III. GRUESOME PHOTOGRAPH
Deal next argues that the trial court erred in admitting a gruesome photograph of Phalp taken after her death.
The admission of photographs of a decedent, including photographs taken during an autopsy, is not error when they are relevant to matters in issue, such as the cause and manner of death, and aid the understanding of a pathologist's testimony. The admission of such evidence is within the trial court's discretion. State v. Childers, 222 Kan. 32, 44-45, 563 P.2d 999 (1977). While the admission of gruesome photographs is rarely held to be an abuse of discretion, this court has done so in cases where the probative value was slight and the prejudicial effect great (other grounds for a mistrial were present). State v. Harris, 259 Kan. 689, 710, 915 P.2d 758 (1996). An abuse of discretion may be reached if the admitted photographs were unduly repetitious and cumulative or their introduction was solely for the purpose of prejudice. State v. Spears, 246 Kan. 283, 286, 788 P.2d 261 (1990).
Photographs which are relevant and material in assisting the jury's understanding of medical testimony are admissible. State v. Prouse, 244 Kan. 292, 294-95, 767 P.2d 1308 (1989). Specifically, photographs which aid a pathologist in explaining the cause of death are admissible. State v. Carr, 265 Kan. 608, 623, 963 P.2d 421 (1998); State v. Harris, 259 Kan. 689, 711, 915 P.2d 758 (1996); Spears, 246 Kan. at 286.
The photograph did assist Dr. Donald P. Pojman, a forensic pathologist, in explaining the attempt to determine the cause of death. Pojman performed the autopsy upon Phalp. Pojman did not observe any indication of acute trauma. There were color changes to the body due to decomposition and bloating. Pojman was shown State's Exhibit #9, the photograph of the head, neck, and chest area of Phalp and testified that the reason for the accelerated decomposing in the head and face was that there was congestion in the head and additional blood pooling inside the head as opposed to the rest of the body. One of the causes of the congestion would be strangulation, a closing off of the flow of blood from the head while the arteries allow blood to enter the head.
Pojman was unable to conclude that Phalp was strangled, partly because of the decomposition which can mask signs of strangulation. The cause of death was determined to be asphyxia, a general term for a lack of oxygen to the brain. This could occur from drowning, suffocation, smothering, or choking. Pojman could not determine whether Phalp was strangled, suffocated, or drowned. There were no signs of a struggle or defensive wounds.
The photograph, although graphic, was necessary in aiding the medical testimony by Pojman and assisted him in explaining the analysis of the cause of death. We find no abuse of discretion in the admission of the photograph.
IV. AIDING A FELON
Deal argues that the trial court erred in refusing to instruct the jury on his theory of defense, which was aiding a felon. Deal contends that the failure to instruct on his theory of defense violated his due process rights under the constitution.
In making this argument, Deal does not claim that aiding a felon is a lesser included offense of premeditated first-degree murder but instead that aiding a felon is a defense to the crime charged. Deal's defense, however, is that he did not commit the crimes charged. If the jury believed that Deal did not commit the crime charged, it would have been required to acquit him. The jury, instead, convicted Deal of one of the crimes charged.
In State v. Weigel, 228 Kan. 194, 198, 612 P.2d 636 (1980), the appellant made the same argument. In determining that no such instruction was required, this court stated:
"Defendant's next point concerns his request that the court give an instruction on aiding a felon. Defendant had maintained throughout his trial that his actions, after he awoke from a drunken stupor and drove his companions away from the bank, were for the purpose of helping one of the female robbers get out of the state. He argues that this was his theory of defense and as such the court should have instructed thereon. We cannot agree. Aiding a felon is a separate criminal offense proscribed by K.S.A. 21-3812. It is not error to refuse an instruction thereon when the accused has not been charged with said crime and it is not a lesser included offense of the crimes of which he has been charged. Defendant was not charged with the crime of aiding a felon. The crime was not a lesser included offense of any of the crimes of which he was charged. See K.S.A. 21-3107. Therefore, the point is without merit."
Likewise, Deal's argument on this point is also without merit. The trial court did not err in refusing to give an instruction on aiding a felon when Deal was not charged with the crime. Deal's argument that his "defense" was that he committed another crime not charged is not a defense at all. His defense was that he did not commit the crime charged. The State chose not to charge Deal with aiding a felon. It would have been inappropriate for the trial court to instruct the jury on a crime which was not charged.
V. AUGUST 6, 1998, VIDEOTAPE
Deal argues that the trial court erred in denying his motion to suppress his August 6, 1998, videotaped interview.
The prosecution has the burden of proving whether a confession or admission is admissible. K.S.A. 22-3215(4). On appeal, an appellate court will not reverse a determination that a confession or admission was freely, voluntarily, and intelligently given or that it was or was not "custodial" if there is substantial competent evidence to support the determination. See State v. Jacques, 270 Kan. 173, ______, 14 P.3d 409 (2000) (analyzing whether defendant was in "custody" under a substantial competent evidence standard); State v. Clemons, 251 Kan. 473, 480, 836 P.2d 1147 (1992) (using substantial competent evidence standard to decide whether defendant was in custody when he was interrogated); State v. William, 248 Kan. 389, 405-06, 807 P.2d 1292 (1991) (applying substantial competent evidence standard of review to determine whether defendant was in custody at the time he was questioned by police). The legal conclusion drawn from those facts is reviewed de novo. State v. Dang, 267 Kan. 198, 199, 978 P.2d 277 (1999).
On August 6, 1998, police located Deal, Hunke, and Garrett at Hunke's parents' house. Police had been looking for the three men in association with the investigation into Phalp's death. Deal, Hunke, and Garrett were asked to come to the Lenexa Police Department to speak with detectives about Phalp's disappearance. Garret and Hunke got into Deal's pickup truck, and Deal drove to the Lenexa Police Department while police followed.
Deal, Hunke, and Garrett did not object to going to the police station. The three were separated and interviewed in separate rooms. The interviews were videotaped. Miranda rights were not read to D