State v. Garcia

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,998

STATE OF KANSAS,
Appellee,

v.

MIGUEL A. GARCIA,
Appellant.


SYLLABUS BY THE COURT

1.
An appellate court uses a dual standard of review of a district court's ruling on a
motion to suppress, assessing whether the underlying facts are supported by substantial
competent evidence but utilizing a de novo review of the ultimate legal conclusion to be
drawn from those facts. That standard of review is applicable even where, as in this case,
the appellate court is reviewing the same interrogation videotape from which the district
court made its determination.

2.
The State has the burden to prove, by a preponderance of the evidence, that a
defendant's statements to police were voluntarily made, i.e., that the statements were the
product of the defendant's free and independent will.

3.
Appellate courts have developed a nonexclusive list of factors to aid in the
analysis of whether an accused person's statement is voluntary: (1) the accused's mental
condition; (2) the duration and manner of the interrogation; (3) the ability of the accused
on request to communicate with the outside world; (4) the accused's age, intellect, and
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background; (5) the fairness of the officers in conducting the interrogation; and (6) the
accused's fluency with the English language. The voluntariness factors are not to be
weighed against one another on a balance scale, with those favorable to a free and
voluntary confession offsetting those tending to the contrary. Rather, they are to be
considered singly and/or together to determine the ultimate question of whether, under
the totality of circumstances, the suspect's will was overborne and the confession was not
a free and voluntary act.

4.
The police tactic of withholding requested relief for an obviously painful untreated
gunshot wound over the course of a several-hours-long interrogation is inherently
coercive and must play a significant role in the totality-of-the-circumstances test of the
voluntariness of the ensuing confession.

5.
An extrajudicial confession will not be received into evidence unless it has been
freely and voluntarily made, and if the confession has been extorted by fear or induced by
hope of profit, benefit, or amelioration, it will be excluded as involuntary.

6.
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 likely 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 believed had the power or authority to execute it.

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7.
Even an error that infringes upon a constitutional right may be declared harmless
if the benefiting party proves beyond a reasonable doubt that the error did not affect the
outcome of the trial in light of the entire record.

Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed April 26, 2013.
Reversed and remanded.

Debra J. Wilson, of Capital Appeals and Conflicts Office, argued the cause and was on the briefs
for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: A jury convicted Miguel A. Garcia of felony murder based upon the
underlying felony of aggravated robbery, for which he was also convicted. During the
robbery, Eliel Fernandez shot and killed the robbery victim, Andres Vega. Garcia's guilt
was premised upon his alleged participation in the planning and execution of the robbery.
During a police interrogation, Garcia admitted that he participated in the robbery, and the
district court denied Garcia's motion to suppress that statement. On appeal, Garcia
contends: (1) The district court should have suppressed as involuntary the confession
elicited from him during an interrogation; (2) the district court erred in finding that he
had opened the door for the State to use the rebuttal testimony of a previously excluded
witness; (3) the district court erroneously admitted repetitive and overly gruesome
photographs where the manner and cause of death were not in issue; and (4) the
cumulative effect of trial errors denied him a fair trial. Finding that Garcia's confession
was improperly obtained, we reverse and remand for a new trial.
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FACTUAL AND PROCEDURAL OVERVIEW

The incident giving rise to the charges in this case occurred the evening of
February 21, 2009, in the parking lot of a bar. The witnesses' descriptions of the events
that evening contained inconsistent details, especially as to the persons who participated
in the planning of the robbery and as to when and where the decision to rob someone was
made. But, generally, we know that Garcia left the home of his girlfriend, Eman
Malkawi, and proceeded to the bar in the company of Malkawi, Tina Buck, and Eliel
Fernandez. There was some disputed testimony that Garcia participated in a pre-departure
discussion about robbing a bar patron.

While the group was at the bar, employees discovered that Fernandez was not in
possession of proper identification, and they asked him to leave. Fernandez left with
Garcia and Malkawi to go to his residence to retrieve an ID Ostensibly, as he was leaving
the bar Fernandez told Buck to find someone for them to rob and to lure that person
outside. At his house, Fernandez obtained a weapon which he took along as he, Malkawi,
and Garcia drove back to the bar. Upon arriving at the bar parking lot, the three saw Buck
with a man, later identified as Vega. Fernandez and Garcia exited the car and ran toward
Buck and Vega. As they ran, Fernandez pulled out the gun and yelled: "'Give me your
money, bitch!'" Garcia attempted to prevent Fernandez from shooting Vega, but Garcia
got shot in the foot for his efforts. Fernandez then shot at Vega, striking him with four
rounds and causing his death.

Garcia, Fernandez, and Malkawi left the bar immediately after the shooting.
Garcia and Malkawi let Fernandez out of the car to dispose of the gun and then proceeded
to Buck's mother's house where Garcia's gunshot wound was cleaned with peroxide and
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bandaged. Garcia and Malkawi returned to their home without obtaining any further
medical assistance for Garcia's gunshot wound.

The next morning, police officers brought Garcia and Malkawi to the station,
where they were separately questioned. After being read his Miranda rights, Garcia
signed a written waiver of those rights. Garcia's interview was videotaped and lasted a
total of 5 hours, although the actual questioning occurred in segments and consumed a
total time of something less than 2 hours.

Details of the interrogation will be recited in the discussion of the suppression
issue, so a brief summary will suffice here. Initially, Garcia denied that he knew
Fernandez or that he was involved in any robbery. He subsequently admitted knowing
Fernandez and acknowledged that he was at the scene of the shooting. But for most of the
interview he continued to deny any involvement in the robbery. Instead, Garcia's version
of events was that he tried to intervene when he saw Vega attempting to abduct Buck into
a van, but someone began shooting and wounded Garcia, prompting him to flee the
scene. During the interview, Garcia requested medical attention a number of times, but
the officers said that he would have to wait for medical treatment or pain medication until
the interrogation was complete and Garcia had done "what you know is the right thing to
do." The law enforcement officers refused to accept that Garcia was rescuing Buck and
repeatedly urged him to admit to participating in the robbery and to be a witness against
Fernandez, the shooter, in order to avoid being charged with felony murder. At one point,
an officer told Garcia that the district attorney was present outside of the interrogation
room. The interrogating officer initially refused Garcia's request to see his girlfriend,
Malkawi, saying that Garcia first needed to tell the truth about what happened in his own
words. When Garcia would not give that statement, the officer brought Malkawi into the
interrogation room to tell Garcia that he would not be booked for murder if he admitted to
the robbery. Garcia immediately admitted to participating in the robbery, albeit he
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provided no details on how the robbery was planned or executed. The interview
concluded shortly thereafter, and Garcia was booked into jail on charges of both felony
murder and robbery.

Prior to trial, the court conducted a hearing on Garcia's motion to suppress his
confession. The State relied entirely on the digital videotape of the interrogation and the
transcript of that interview. After reviewing those exhibits, the trial court found that
Garcia had been given the Miranda warnings; that Garcia appeared to be in some pain at
times, but not "acute pain"; that Garcia did not appear to believe the police officer's
promises that he would only be charged with robbery if he confessed to that crime; and
that from the totality of the circumstances, Garcia's statement was voluntary.

At trial, Garcia took the witness stand in his own defense and denied any
involvement in the planning or execution of the robbery. Garcia claimed that he only
confessed to the robbery based upon the promise, related by the police and Malkawi, that
he would not be charged with murder if he admitted to the robbery. The jury convicted
Garcia of conspiracy to commit robbery and first-degree felony murder.

SUPPRESSION OF CONFESSION

Garcia contends that the district court erred in finding that the totality of the
circumstances established that his confession to participating in the robbery was freely
and voluntarily given. He emphasizes two circumstances that gainsay voluntariness: (1)
The interrogating officers withheld requested medical treatment and pain medication for
Garcia's gunshot wound until the interrogation was completed; and (2) the State used
promises of leniency to induce the confession. We agree with Garcia; the manner in
which his ultimate confession to robbery was obtained was unconstitutionally infirm.

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Standard of Review

This court has observed that a district court's ruling on a motion to suppress
evidence usually presents a mixed question of fact and law, prompting the use of a dual
standard of review. The facts underlying the district court's decision on a suppression
motion are reviewed under a substantial competent evidence standard, but the ultimate
legal conclusion to be drawn from those facts is reviewed de novo. State v. Summers, 293
Kan. 819, 825, 272 P.3d 1 (2012). Substantial competent evidence refers to legal and
relevant evidence that a reasonable person could accept as being adequate to support a
conclusion. State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). But appellate
courts should refrain from reweighing evidence, assessing witness credibility, or
resolving conflicts in the evidence applicable to the district court's ruling on a motion to
suppress. See State v. Robinson, 293 Kan. 1002, 1017, 270 P.3d 1183 (2012); State v.
Cosby, 285 Kan. 230, 240, 169 P.3d 1128 (2007); State v. Swanigan, 279 Kan. 18, 23,
106 P.3d 39 (2005).

Notwithstanding our well-settled law on the standard of review applicable to a
suppression ruling, Garcia asks us to utilize a de novo review, omitting any deference to
the district court's factual findings. Garcia contends that the change is justified because
the entire police interview at issue here was videotaped and transcribed, allowing this
court to see exactly what the trial judge saw. He argues that both this court and the Court
of Appeals have exercised de novo review "[u]nder similar circumstances."

A review of the cases cited by Garcia, however, does not reveal the suggested
similarity in circumstances. To the contrary, this court has routinely utilized its bifurcated
standard of review in suppression cases, even where the statements at issue were
videotaped. See Robinson, 293 Kan. at 1017; State v. Gonzalez, 282 Kan. 73, 100, 145
P.3d 18 (2006); State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006); State v. Combs,
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280 Kan. 45, 47, 118 P.3d 1259 (2005); State v. Holmes, 278 Kan. 603, 611-12, 102 P.3d
406 (2004); State v. Jackson, 270 Kan. 755, 756-57, 19 P.3d 121 (2001). Moreover,
although this court provided no separate analysis of the issue, in State v. Edwards, 291
Kan. 532, 545, 243 P.3d 683 (2010), we rejected a defendant's assertion that we should
perform a de novo review of a trial court's denial of a motion to suppress.

Granted, we have held that where the facts material to a trial court's decision on a
motion to suppress evidence are not in dispute, the question of whether to suppress is a
question of law subject to unlimited review. State v. Fitzgerald, 286 Kan. 1124, 1126,
192 P.3d 171 (2008). One can imagine that the videotaping of an interrogation might
greatly reduce the number of facts that are disputed; it nevertheless remains the duty of
the district court to do the factfinding, not the appellate courts. As our Court of Appeals
has aptly observed, "[A]lthough we may consider whether a videotape of a traffic stop
supports the district court's factual findings, we do not review the videotape in an effort
to invade the district court's province of determining witness credibility or weighing the
evidence." State v. Diaz-Ruiz, 42 Kan. App. 2d 325, 329, 211 P.3d 836 (2009). See State
v. Hess, 37 Kan. App. 2d 188, 191, 153 P.3d 557 (2006). That same procedure is
appropriate where the videotape involves an interrogation. Accordingly, we decline
Garcia's invitation to modify our standard of review.

Analysis

We begin with a review of some basic principles. The State has the burden to
prove, by a preponderance of the evidence, that a defendant's statements were voluntarily
made, i.e., that the statements were the product of the defendant's free and independent
will. See State v. Gilliland, 294 Kan. 519, 529, 276 P.3d 165 (2012); Edwards, 291 Kan.
532, Syl. ¶ 5; State v. Brown, 286 Kan. 170, 172, 182 P.3d 1205 (2008). The court looks
at the totality of the circumstances surrounding the statement and determines whether it
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was voluntary. Appellate courts have developed a nonexclusive list of factors to aid in the
voluntariness analysis:

"(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." Robinson, 293
Kan. 1002, Syl. ¶ 7.

These factors, even if established as true, do not necessarily conclusively establish
that the confession was involuntary. Moreover, the process is not one of simply listing
and comparing those factors favoring voluntariness and those factors indicating
involuntariness.

"'[T]hese [voluntariness] factors are not to be weighed against one another on a balance
scale, with those favorable to a free and voluntary confession offsetting those tending to
the contrary. Instead, the situation surrounding the giving of a confession may dissipate
the import of an individual factor that might otherwise have a coercive effect. [Citation
omitted.] Even after analyzing such dilution, if any, a single factor or a combination of
factors considered together may inevitably lead to a conclusion that under the totality of
circumstances a suspect's will was overborne and the confession was not therefore a free
and voluntary act.'" State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 (2009) (quoting Green
v. Scully, 850 F.2d 894, 902 [2d Cir. 1988]).

In addition to the caselaw on voluntariness, we have a hearsay exception for
confessions that sets forth some constraints on the admissibility of an accused's
statements that may be helpful in this case:

"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
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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." K.S.A. 2012 Supp. 60-460(f).

Garcia does not contend that the district court failed to follow the foregoing
directions. To the contrary, the district court specifically recited the correct legal
standards and generally discussed the nonexclusive factors.

With respect to Garcia's mental condition, the court focused on the impact of the
gunshot wound and its accompanying pain. The court noted that, most often, Garcia
focused on the pain from his wound during the periods when he was alone in the
interrogation room. But during the periods of actual interrogation, the court found Garcia
to be alert and focused, asking appropriate questions and giving appropriate answers. The
court opined that, although there were times that Garcia asked for medical attention and
times when he exhibited pain during the interrogation periods, "Garcia's pain was [not] so
acute during the interviews that it appeared to be uppermost in his mind or that it affected
the content of his statements."

The district court characterized the duration and manner of interrogation as
follows:

"Mr. Garcia was in the interview room about five hours; however actual interviews of
Mr. Garcia lasted a total of less than two hours off and on. Mr. Garcia was given water
and was allowed access to a restroom when he requested one. At times law enforcement
raised their voices and expressed opinions about what they believed to be true. Law
11



enforcement showed dissatisfaction through words and actions when Mr. Garcia's
statements did not seem consistent with their idea of the truth. The detectives did express
the belief that charges would be less serious if Mr. Garcia cooperated. It is clear what the
detectives believed cooperation would be. Nonetheless, law enforcement stopped short of
promising benefit or detriment to Mr. Garcia that was connected to what Mr. Garcia
said."

On the factor of the accused's ability to communicate with the outside world, the
district court suggested that Garcia only made two requests: (1) to visit with his
girlfriend, Malkawi; and (2) to get medical attention for his injury. The court then
summarily dismissed that factor with its finding that "[a]ccess to his girlfriend was
granted within a short time, and the defendant was taken to the hospital after the
interview."

With respect to the fourth factor—the accused's age, intellect, and background—
the district court recited that Garcia was 29 years old with apparently average intellect.
The court noted that Garcia had related that he had been imprisoned in California and that
Garcia appeared to be adept at deflecting the "conversation from areas of inquiry that
might be most harmful to him legally."

The district court expressed some concern about the fairness of the officers
conducting the interrogation. The court noted that when the officers believed that Garcia
was not being truthful, they would immediately cut him off, raise their voices, and say
that things would go better for Garcia if he admitted to participating in the robbery.
Further, the officers' statements of the law were "sometimes wrong." But the court
balanced that against one officer's statement that it would be the district attorney who
decided what to charge and the court's opinion that Garcia did not believe that the officers
had the authority to determine what he would be charged with or that they were telling
him the truth.
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After determining that the last factor—English fluency—was not in issue, the
district court concluded that, under the totality of the circumstances, Garcia's statements
were voluntary. Accordingly, the court denied the suppression motion.

We turn now to Garcia's specific complaint that the officers denied him medical
treatment for the purpose of inducing a confession. The district court considered Garcia's
gunshot wound and accompanying pain only as it related to his ability to lucidly
communicate with the law enforcement officers. In that regard, the district court was
willing to accept the fact that Garcia was in pain, so long as the pain was not so acute as
to affect his ability to know what he was doing or saying. But a knowing confession is not
a voluntary confession if it is coerced, i.e., if it is not the product of free will. The inquiry,
then, is whether the officers' withholding of medical treatment influenced Garcia's
decision to confess to the robbery. If law enforcement officers make an accused endure
pain, even less than debilitating pain, until the accused gives a statement that the officers
will accept, the voluntariness of that confession is, at best, suspect. The record indicates
that was the circumstance here.

As previously noted, Garcia requested medical treatment within the first half hour
of his detention. The detective responded, "Give me a couple minutes," and said he just
wanted to know who was with Garcia on the night of the incident. When Garcia cursed at
his pain, the detective responded by saying that Garcia should "hang on, just give me
about five seconds here and answer this question." But after Garcia answered that
question, the detective continued with 18 more questions before asking: "You need
something, you want somebody to take a look at that?" Although Garcia answered in the
affirmative, the detective left the interrogation room and returned to resume questioning
without providing pain medication or medical treatment. Shortly thereafter, the detective
asked why Garcia had not gone to the doctor after being shot, to which Garcia responded
13



that he "was just paranoid, sir, to be honest with you." A little later, the detective asked if
the bullet was still in Garcia's body and inquired as to whether there was one hole or two.
Although Garcia's response was equivocal, the detective moved right back to questioning
before leaving the room again.

The interrogation resumed with another law enforcement officer, who introduced
himself to Garcia before inquiring about his foot. But the questioning continued for
awhile before the officer inquired whether Garcia's foot had an exit wound, i.e., whether
the bullet was still in the foot. The officer then said that he was "going to be really
interested when we take you to the hospital whether we're going to find out that that
bullet does down or this way." Later, the officer told Garcia that he knew the bullet in
Garcia's foot would match the bullets in the dead victim. In other words, the officer was
suggesting that Garcia's medical treatment would be part of the criminal investigation and
the implication was that they would not go to the hospital until the interrogation was
completed.

The officer sparred with Garcia for a long time, indicating that Garcia's version of
what happened was not matching up with what the police already knew from other
witnesses. The officer suggested that if Garcia was not the shooter and he told what had
happened, he could avoid going to prison on a murder charge. The officer related some
scenarios whereby a person could avoid being charged with felony murder, even though
the person had participated in a felony where an accomplice killed someone. Presumably,
this part of the interview contributed to the district court's finding that the officers'
statements of the law were "sometimes wrong." Nevertheless, Garcia kept saying that he
would not admit to something that he did not do and that he knew he would be charged
with murder no matter what. At one point, he said he would just go to court and fight the
charges, and at another point he expressed his belief that he would be killed in prison if
he told the officer anything more than what he had said. Perhaps the flavor of the
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interrogation might be captured in the following statement by the officer, after Garcia had
indicated that he thought he would be sent to prison for 25 years to life:

"Do something about it. I've told you, I am giving you the tools to take care of
this, to help yourself. I've given you the information that you need to know. I have tried
to pull it out of you and I am not getting anywhere with you. I'm saying, help yourself.
Help yourself."

Garcia continued to express skepticism at the officer's suggestion that he could
avoid a murder charge by admitting to involvement in the robbery and eventually asked if
he could get some medical attention. When the officer ignored the request and continued
with the interrogation, the conversation went as follows:

"[Garcia:] Can I get some medical attention?
"[Officer:] After we're done.
"[Garcia:] This is hurting bad.
"[Officer:] You know what? It was hurting before and you didn't go to the
hospital, at all, did you? It's not bothering you that bad. I know it hurts. I know it hurts.
It's not bothering you bad enough that you wanted to go to the hospital and risk having to
run into the police there. So, let's get this out of the way, do what you know is right, do
what you know is the right thing to do, do what's good for Miguel.
"[Garcia:] I am.
"[Officer:] No, you're not. You're not giving me any choice. Given a choice
between having Miguel as a witness or as a guy sitting next to the guy that's going away
for the rest of his life, I would rather have you as a witness; but that's a choice that you
got to help me make."

A discussion ensued about what deal the district attorney (DA) might make with
Garcia, and the officer said, "The DA's in the other room." When Garcia asked to see his
girlfriend, Malkawi, the officer responded that he was "not going to let that happen until
15



we finish talking." After Garcia asked for some water, the interrogating officer left the
room. When the officer returned, there was no more talk of medical attention. Instead, the
attempt to persuade Garcia to admit to participating in the robbery resumed in earnest.

We discern that certain things are patently obvious from the words and actions of
the law enforcement officers conducting Garcia's interrogation. First, the officers knew
that Garcia had been shot in the foot with a firearm; that he probably still had the bullet
inside his body; that he had not received professional medical treatment for the wound;
and that he was experiencing pain from the injury at the time of the interrogation. Next,
Garcia was not going to be provided any medical attention or pain relieving medication
until the officers had completed their questioning and took him to the hospital to retrieve
the bullet for evidence. Further, the officers appeared unlikely to complete their
questioning until Garcia gave them the statement that they believed to be true, which was
that Garcia participated in the robbery.

The State contends that other facts are compelling, such as Garcia's choosing not
to go to the hospital with his gunshot wound and his statements that he did not feel
anything in his foot. Any suggestion that those facts are relevant to the level of pain that
Garcia was suffering during the interrogation would be disingenuous. Garcia's failure to
seek immediate care from a physician is certainly understandable, given the general
knowledge that doctors have to report gunshot wounds to the police. See K.S.A. 2012
Supp. 21-6319 (unlawful for attending physician to fail to report gunshot wound to chief
of police or sheriff). Garcia's statements about not feeling anything were related to the
questions as to whether the bullet remained in the foot. Not being able to feel whether the
bullet remained in the foot does not mean an absence of pain.

By the time Garcia ultimately confessed, he had been in police custody for
approximately 5 hours. Remembering the district court opined that Garcia appeared to be
16



most bothered by the pain during the times he was alone in the interrogation room and the
actual questioning took less than 2 hours, we can calculate that Garcia had endured over 3
hours of the more painful periods at the time of the confession. Garcia appeared to
unsuccessfully attempt a number of ploys to bring the interrogation to an end, such as
saying that he would just fight the charges in court or that if he gave them the statement
they wanted he would be killed in prison as a snitch. At one point a little over halfway
through the interrogation detention, he even said straight out: "You say I am arrested
already so I might as well just go along." But the interrogation continued.

Even for an accused with Garcia's prior experience with the legal system, the
withholding of medical attention until the completion of the interrogation had to
influence the ultimate decision to tell the police what they were asking to be told. Even if
Garcia did not confess solely to obtain medical treatment, the tactic of withholding
requested relief for an obviously painful untreated gunshot wound over the course of a
several-hours-long interrogation was inherently coercive and must play a significant role
in our totality-of-the-circumstances test. Indeed, one of the purposes of the exclusionary
rule is to prevent inhumane and unacceptable interrogation techniques.

Moving to Garcia's second point—that he was promised leniency in return for a
confession to robbery—we are constrained to some extent by the district court's finding
that "law enforcement stopped short of promising benefit or detriment to Mr. Garcia that
was connected to what Mr. Garcia said." Although the law enforcement officers for the
most part chose their words carefully, an ordinary person would have understood that the
officers were telling the accused that a murder charge and accompanying life sentence
could be avoided by admitting to the robbery and testifying against Fernandez. It appears
that Garcia refused to take the bait because he thought it was a trick, not because he did
not understand that the promise was being made.

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Nevertheless, we can steer clear of the district court's factfinding province. That
court did not discuss the portion of the interrogation involving Malkawi, immediately
before Garcia confessed. As noted above, the interrogating officers had denied Garcia's
request to see his girlfriend, indicating that he would have to give his statement first. But
when repeated efforts at obtaining the desired statement failed, the officer switched
tactics:

"[Sergeant Volle:] No. No. Come on. Would I be doubting you at all if I didn't
know it was not true? I know what happened. Hang on, I am going to go get your girl.
She's going to stand at that door, you are going to sit in that chair.
"[Garcia:] Yeah.
"[Sergeant Volle:] Don't move; no hugs.
"[Garcia:] I know, I know. I'll probably do that, I am not—
"[Sergeant Volle:] She is going to stand in that door and she is going to tell you
that I talked to her and she told the truth.
"[Garcia:] Okay.
"(Sergeant leaves room and then returns with unidentified female)
"[Malkawi:] Right here?
"[Sergeant Volle:] Yeah, right here.
"[Malkawi:] Do you want to go in for murder or robbery?
"[Garcia:] I'm fuckin' pretty sure (Inaudible). You know that.
"[Malkawi:] Baby, at least don't go down for murder.
"[Garcia:] But I didn't even do shit.
. . . .
"[Sergeant Volle:] Go ahead, explain to him. Help me help him.
"[Malkawi:] They are going to take you down for murder if you don't—if you
don't say about the—
"[Garcia:] I know they are going to take me down for murder, (Inaudible) for
fuckin' robbery, all of this, because they are going to book both on me later on when I get
to the fuckin' station.
"[Malkawi:] They're not going to book you for murder.
"[Garcia:] All right, man, I did, I did try to rob that guy.
18



"[Malkawi:] But he didn't—he really did, he really tried to stop him. He tried to
stop him from shooting the guy. He really did."

Law enforcement coercion can be mental as well as physical. State v. Harris, 284
Kan. 560, 579, 162 P.3d 28 (2007). It is well settled that an extrajudicial confession will
not be received in evidence unless it has been freely and voluntarily made. If it has been
extorted by fear or induced by hope of profit, benefit, or amelioration, it will be excluded
as involuntary. 284 Kan. at 579. 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 likely 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 believed had the power or authority to
execute it. 284 Kan. at 579-58. Moreover, there must be a link between the State's
coercive conduct and the confession. Swanigan, 279 Kan. at 40.

The foregoing exchange did not stop short of promising a benefit to Garcia in
return for his confession to robbery. The promised benefit was clearly stated: "They're
not going to book you for murder." That was the same carrot that the officers had been
unsuccessfully dangling in front of Garcia for hours. But this time, it was delivered by
someone that Garcia trusted, and the result was immediate: "All right, man, I did, I did
try to rob that guy."

The promise concerned action to be taken by a public official, i.e., the law
enforcement officer who would process Garcia into jail. The promise was one that would
likely cause the accused to make a false statement to obtain the promised benefit, i.e., the
ability to make a murder charge and accompanying life sentence go away would be a
strong motivator for prevarication. Finally, although the promise was verbalized by
Malkawi, she was obviously referring to the conduct of the police. Sergeant Volle told
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Garcia that he had talked with Malkawi and then he brought her into the interrogation
room, imploring her: "Go ahead, explain to him. Help me help him." After Malkawi
stated that "they" were not going to book Garcia for murder, the sergeant did not correct
the statement. To the contrary, after Malkawi left the room, he pointed out to Garcia that
he had been telling the truth all along. Regardless of whether the DA had made a
charging decision, the arresting officer clearly had the apparent authority to fulfill the
promise not to book Garcia for murder. In short, the promise in this case fits within the
parameters of those promises that may be deemed to have rendered a confession
involuntary.

As noted above, after we give deference to the district court's findings of fact, we
exercise de novo review of the totality of the circumstances to determine whether the
confession was voluntarily given. In that regard, we disagree with the district court's legal
conclusion. The law enforcement officers' coercive tactics and promises of leniency, in
the context of the circumstances of the entire interrogation, convince us that the
confession here was not a product of the accused's free will, i.e., was not voluntary.
Accordingly, we find that the district court erred in refusing to suppress the defendant's
confession.

Nevertheless, even an error that infringes upon a constitutional right may be
declared harmless if the benefiting party proves beyond a reasonable doubt that the error
did not affect the outcome of the trial in light of the entire record. State v. Ward, 292 Kan.
541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). But here, the
State's brief simply argued that the admission of the confession was not erroneous; no
attempt was made to convince us that the admitted confession did not contribute to the
verdict. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (issue not
briefed deemed waived and abandoned). Even so, such a task would have taken a
Herculean effort. Garcia's own statement that he did the robbery was tantamount to
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admitting that he committed felony murder, which would have to be compelling for a
jury. Consequently, we cannot declare the error to be harmless; rather, we must reverse
Garcia's convictions and remand for a new trial.

Given our disposition on the first issue, we need not discuss the remaining issues
in detail. We would caution, however, that the coroner or medical expert is not the
gatekeeper with respect to the relevancy of photographs, especially those that have been
rendered more gruesome by the autopsy procedure. Just because the coroner could use a
photograph to explain the victim's anatomy, the trial court must nevertheless ascertain
that the photograph's probative value to the prosecution of the case outweighs its
prejudicial effect.

Reversed and remanded.