State v. Gibson

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 106,646

STATE OF KANSAS,
Appellee,

v.

KELVIN H. GIBSON, JR.,
Appellant.


SYLLABUS BY THE COURT

1.
When challenged, the prosecution must prove by a preponderance of the evidence
the voluntariness of a defendant's inculpatory statements to a law enforcement officer.

2.
In determining whether a defendant's inculpatory statements to a law enforcement
officer were freely and voluntarily given, a trial court usually looks at the totality of the
circumstances surrounding the statements and determines their voluntariness by
considering the following nonexclusive factors: (a) the accused's mental condition; (b)
the manner and duration of the interviews; (c) the accused's ability to communicate on
request with the outside world; (d) the accused's age, intellect, and background; (e) the
officer's fairness in conducting the interviews; and (f) the accused's fluency with the
English language.

3.
When the accused is a juvenile, Kansas courts must exercise the greatest care in
assessing whether the juvenile's inculpatory statements to law enforcement were
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voluntary. A juvenile's inculpatory statements must be free from coercion or suggestion
and must not be the product of ignorance of rights or adolescent fantasy, fright, or
despair. In assessing the voluntariness of a juvenile's inculpatory statements to police,
Kansas courts have articulated five nonexclusive factors for consideration: (a) the
juvenile's age; (b) the length of questioning; (c) the juvenile's education; (d) the juvenile's
prior experience with police; and (e) the juvenile's mental state.

4.
When applying the appropriate factors to determine the voluntariness of an
accused's inculpatory statements to police, the trial court is not to weigh one factor
against another with those factors favorable to a free and voluntary statement offsetting
those factors unfavorable. Instead, the situation surrounding the giving of inculpatory
statements may dissipate the import of an individual factor that might otherwise have a
coercive effect. 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 an accused's will was overborne and the inculpatory
statements were not free and voluntary.

5.
On appeal of a trial court's determination regarding the voluntariness of a
defendant's inculpatory statements, an appellate court applies a dual standard when
reviewing the trial court's decision on a suppression question. First, the factual
underpinnings of the decision are reviewed under a substantial competent evidence
standard. Next, the appellate court reviews the trial court's legal conclusion drawn from
those facts de novo. An appellate court does not reweigh evidence, assess witness
credibility, or resolve conflicting evidence.

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6.
A district court's decision not to reopen the evidentiary record after conducting a
hearing on the voluntariness of a defendant's inculpatory statements to law enforcement
in accordance with Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908
(1964), is reviewed for abuse of discretion.

7.
An abuse of discretion occurs when judicial action was (a) arbitrary, fanciful, or
unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial
court; (b) based on an error of law, i.e., if the discretion was guided by an erroneous legal
conclusion; or (c) based on an error of fact, i.e., if substantial competent evidence does
not support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion was based.

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed April 18,
2014. Affirmed.

Jeffrey C. Leiker, of Leiker Law Office, P.A., of Kansas City, argued the cause, and Michael J.
Nichols, of Michael J. Nichols, P.A., of Kansas City, was on the brief for appellant.

Sheryl L. Lidtke, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Kelvin H. Gibson, Jr., appeals his first-degree murder and aggravated
robbery convictions, raising two issues related to the district court's determination that
inculpatory statements he made to police were voluntary. First, he contends the court
failed to make necessary factfindings when concluding the statements were voluntary;
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and, alternatively, the record is insufficient to support that conclusion. Second, he argues
structural error occurred when he was not allowed to testify in support of his motion to
reconsider. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Gibson was convicted in the October 6, 2008, killing of Phillip Martin, who was
found dead on his kitchen floor from multiple gunshot wounds in what appeared to be a
drug-related crime. See State v. Harris, 297 Kan. 1076, 306 P.3d 282 (2013) (affirming
convictions of Katron Harris involving the same killing).

While investigating, police learned Martin had sold drugs from his home and that
Gibson may have been involved with Martin's drug transactions. Officers located Gibson,
who was 17 years old at the time. He gave detectives two statements in which he
implicated himself in the killings. He was charged with first-degree murder and
aggravated robbery.

Before trial, the State moved for a determination as to the admissibility of Gibson's
inculpatory statements to police. The district court conducted an evidentiary hearing at
which Gibson had the opportunity to challenge the voluntariness of those statements. See
State v. Bogguess, 293 Kan. 743, 751, 268 P.3d 481 (2012) (State has burden to prove
defendant's statement was voluntary; truthfulness not at issue); accord Jackson v. Denno,
378 U.S. 368, 376, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).

At the outset of the hearing, the district court asked if Gibson intended to call any
witnesses. His attorney responded in the negative. The State called only one witness,
William Michael, a police detective. We draw the facts relating to Gibson's two
statements primarily from Michael's testimony, except as indicated.
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The October 12, 2008, interview

The detectives located Gibson on October 12, 2008, at his home. Gibson was in
the backyard. He was not a suspect at this time. The detectives identified themselves and
told Gibson they were investigating Martin's killing. They asked Gibson if he would
accompany them to their office to discuss his association with Martin. The detectives
knew they would have had no choice but to leave if Gibson said he did not wish to talk
with them, but Gibson agreed to go.

Before they left for the station, Gibson said he was at Martin's house during the
shooting. Michael testified that this statement still did not make Gibson a suspect but did
make him "a very good witness." Gibson was not under arrest, was not placed in
handcuffs, and the detectives did not consider him to be in custody. They went to the
station in the detectives' vehicle. Michael could not recall Gibson asking whether he
could contact his parents.

The detectives placed Gibson in an interview room at about 4 p.m. and began the
interview at approximately 4:30 or 5 p.m. The only people in the room were Gibson and
the two detectives. Gibson was not initially advised of his Miranda rights because he was
only a possible witness, not a suspect. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966).

During the interview, Gibson admitted taking part in the shooting. He told the
detectives two other individuals—"Tyree" and "D'Andre"—entered Martin's house, shot
Martin, and told Gibson to shoot Martin or they would kill him too. At that point, the
detectives stopped the questioning and administered the Miranda rights to Gibson. They
did this by giving Gibson an "advice of rights" form that had the Miranda warnings
printed on it. The detectives had Gibson read the form out loud to make sure he was a
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competent reader. Gibson read the Miranda rights, and Michael read them back to him.
Michael circled the word "coercion" and explained to Gibson that it meant "force."
Michael told him the detectives did not want to force him to say anything that he did not
understand or without knowing what he was doing. Gibson signed the form, which was
admitted as evidence at the Jackson v. Denno hearing.

Michael testified Gibson's demeanor did not change after he was Mirandized. He
described Gibson as cooperative and very polite during questioning. Gibson did not
appear to be under the influence of drugs or alcohol, did not slur his speech, and
responded appropriately to questions. On cross-examination, Michael said Gibson did not
say he was on any kinds of drugs—a point Gibson later disputed, but not at the hearing.

Michael could not recall Gibson's age at the time of the interview, although the
detective's notes reflected that he knew Gibson was 17. He also did not recall asking
Gibson about his education level. But Michael testified that nothing indicated to him that
Gibson was too young to understand what was happening.

The detectives later took a recorded video statement from Gibson at approximately
7:45 p.m., some 3-1/2 hours after arriving at the police station. A transcript from that
recorded statement was admitted at the hearing. That transcript was not included with the
record on appeal, but the video is part of the record. It reflects that, during this interview,
Gibson told the detectives he was not under the influence of drugs or alcohol but had
smoked marijuana hours before the officers made contact with him at his home. Gibson
also acknowledged that prior to the making of the recorded statement, he had examined
computerized mug shots with the officers in an effort to identify Tyree or D'Andre and
had taken breaks to smoke cigarettes.

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During the entire encounter, Gibson did not ask to stop, did not ask for an
attorney, and did not revoke his Miranda waiver. Michael testified he would have let
Gibson call his parents any time during the "witness" portion of the interview, but only
"in a timely fashion" during the custodial portion. Michal also testified neither detective
raised his or her voice to Gibson. No physical threats, verbal threats, or promises were
made. Michael did admit, though, that he might have told Gibson not to "bullshit" him.

The October 14, 2008, interview

After the first interview, the detectives investigated the individuals Gibson
identified as Tyree and D'Andre. Tyree did not appear to be a suspect, and the detectives
could not locate D'Andre. To follow up, the detectives went to the juvenile detention
center where Gibson was being held. They Mirandized Gibson again, and Gibson signed
another waiver form after the detectives went over it again with him. That form was also
admitted as an exhibit at the hearing. The detectives did not make physical or verbal
threats. Gibson did not appear to be under the influence of drugs or alcohol. Michael
testified the questioning was not confrontational.

The video recording made during this interview was 37 minutes long. A transcript
of it was admitted into evidence at the hearing. The video was made part of the record on
appeal.

The district court ruling and further proceedings

At the Jackson v. Denno voluntariness/suppression hearing, after Gibson's attorney
finished cross-examining Detective Michael, the district court again asked defense
counsel, "[Y]ou don't have any evidence?" Gibson's attorney responded no. The State
then asked the court to conclude Gibson's statements were voluntary based on what it
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called "undisputed" evidence. In response, Gibson's attorney conceded, "[F]rom the
testimony of Detective Michael, he gave it voluntarily. I would note that he was 17, . . . I
know legally he's allowed to give a statement and he . . . tells me . . . that he was very
afraid."

The district court allowed both the October 12 and October 14 statements to be
admitted. The judge ruled, "I can find no constitutional violations. [They] appear[] to be
voluntarily and knowingly given." The district court made no additional findings of fact
and did not elaborate on the reasons for its conclusions. Gibson did not request any
additional findings from the court.

About 4 months after the district court's Jackson v. Denno ruling, Gibson's
attorney moved to reconsider the suppression ruling. The motion alleged that Gibson had
told Michael while making the first recorded statement that he was under the influence of
marijuana and that this made the statement involuntary as he was unable to understand
his Miranda rights. The motion further argued that the subsequent statement must be
suppressed as well because it arose from the information given in the first statement. The
court did not immediately schedule a hearing for consideration of this motion.

Approximately 4 months after the motion for reconsideration was filed, Gibson
filed a pro se "First Amended Motion to Suppress Statement." In this document, he
alleged he was only 17 when he gave the statements, he was "overly impressed and felt
intimidated" by the detectives, and he had told Michael he was under the influence of
marijuana. He argued these things made his statements coerced and involuntary.

The morning of trial, about a month after Gibson filed his pro se motion, the court
took up Gibson's motion. At first, Gibson's counsel announced that Gibson wanted
counsel to "address the Court about it." Arguments by the attorneys then ensued. Defense
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counsel explained the basis for reconsideration was the "uncontroverted fact" that Gibson
was under the influence of marijuana at the time of his first statement, was then 17 years
old, very confused, and felt "overborne" by Detective Michael. The State's counsel
argued those issues were dealt with and ruled on at the first hearing, so there was nothing
new to be considered.

The court then inquired whether Gibson had testified at the original suppression
hearing and was told he had not. The court then ruled the amended pro se motion to
suppress would be denied "for the same reasons mentioned at the first prior hearing." The
court then reiterated that based on the evidence at the first hearing, Gibson's statements
were voluntary, defendant was not "under undue influence from any alcohol or drugs and
the statement was voluntarily given not only the first time, but the second time."

Defense counsel then asked for clarification, so the district court added, "[Gibson]
made appropriate answers to the questions. He didn't say anything out of context or
indicate that he was in any way under the influence such that he didn't understand what
was going on." The court then went on to explain that to the extent Gibson's earlier use of
marijuana was conceded at the first hearing, "apparently it was not to the extent that it
affected his ability to understand what was going on nor did it affect his ability to
voluntarily waive his rights to incriminate himself."

Gibson's counsel then asked, "Would the Court put him under oath just to be on
the record so he can put that on the record?" The court rejected the proffer, noting it had
already conducted a prior Jackson v. Denno hearing at which Gibson was given "every
opportunity to raise anything that might have affected his ability to give a fair and a
voluntary and knowing statement and apparently he did not do so."

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A jury convicted Gibson of first-degree murder and aggravated robbery. The
district court sentenced Gibson to life imprisonment, with a minimum term of 20 years,
for first-degree murder and to a consecutive 61-month prison term for aggravated
robbery. Gibson's presentence investigation report revealed only two prior offenses:
unscored misdemeanor convictions for failure to carry motor vehicle liability insurance.

Gibson timely appealed. Jurisdiction is proper pursuant to K.S.A. 22-3601(b)(1)
(off-grid conviction; life imprisonment).

GIBSON'S STATEMENTS WERE VOLUNTARILY GIVEN

Gibson contends, in the alternative, that (1) his case must be remanded for more
detailed findings to support the district court's conclusion that Gibson's statements were
voluntary or (2) the record is insufficient to sustain the district court's conclusion that his
statements were voluntary and his convictions must be reversed. We hold the record is
sufficient to review and conclude the district court did not err.

Standard of Review

Given the way Gibson frames his issues, it makes sense to revisit first how the
district court must proceed before going directly to what standards are applicable on
appellate review.

When challenged, the prosecution must prove by a preponderance of the evidence
the voluntariness of a defendant's inculpatory statement to a law enforcement officer.
State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013). In determining whether a
defendant's statement to a law enforcement officer was freely and voluntarily given, a
trial court usually looks at the totality of the circumstances surrounding the statement and
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determines its voluntariness by considering the following nonexclusive factors: (1) the
accused's mental condition; (2) the manner and duration of the interview; (3) the
accused's ability to communicate on request with the outside world; (4) the accused's age,
intellect, and background; (5) the officer's fairness in conducting the interview; and (6)
the accused's fluency with the English language. 297 Kan. at 326 (quoting State v. Stone,
291 Kan. 13, 21, 237 P.3d 1229 [2010]).

When the accused is a juvenile, Kansas courts must exercise the greatest care in
assessing whether the juvenile's inculpatory statement to law enforcement was voluntary.
State v. Mays, 277 Kan. 359, 373, 85 P.3d 1208 (2004). A juvenile's inculpatory
statement must be voluntary and free from coercion or suggestion and must not be the
product of ignorance of rights or adolescent fantasy, fright, or despair. State v. Young,
220 Kan. 541, 546, 552 P.2d 905 (1976); accord In re Gault, 387 U.S. 1, 55, 87 S. Ct.
1428, 18 L. Ed. 2d 527 (1967). In assessing the voluntariness of a juvenile's inculpatory
statement to police, Kansas courts have articulated five nonexclusive factors for
consideration, commonly referred to as the Young factors: (1) the juvenile's age; (2) the
length of questioning; (3) the juvenile's education; (4) the juvenile's prior experience with
police; and (5) the juvenile's mental state. Mays, 277 Kan. at 373; see Young, 220 Kan. at
546-48 (stating and discussing factors). Clearly, there is overlap among the factors
articulated in a case involving a juvenile and those usually considered when the
voluntariness of a defendant's statement to police is at issue; but just as clearly, our
caselaw recognizes a heightened sensitivity when the accused is a juvenile.

When applying the appropriate factors to determine the voluntariness of an
accused's statement to police:

"'"[T]hese factors are not to be weighed against one another . . . , with those favorable to
a free and voluntary statement offsetting those tending to the contrary. Instead, the
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situation surrounding the giving of a statement 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 an
accused's will was overborne and the incuplatory statement was not a free and voluntary
act." [Citations omitted.]'" Randolph, 297 Kan. at 326 (quoting State v. Sharp, 289 Kan.
72, 81, 210 P.3d 590 [2009]).

On appeal of a trial court's determination regarding the voluntariness of a
defendant's inculpatory statements, an appellate court applies a dual standard when
reviewing the trial court's decision on a suppression question. First, the factual
underpinnings of the decision are reviewed under a substantial competent evidence
standard. Next, the appellate court reviews the trial court's legal conclusion drawn from
those facts de novo. An appellate court does not reweigh evidence, assess witness
credibility, or resolve conflicting evidence. Randolph, 297 Kan. at 326-27.

Discussion

Gibson first argues his convictions should be reversed, or the case remanded for
additional factfinding, because the district court failed to make detailed findings when it
ruled on his statements' admissibility. The State counters that Gibson failed to preserve
this issue because he did not object to what he now claims are inadequate factual findings
at any time during the district court proceedings. The State further argues the district
court did make the necessary findings when it concluded Gibson's statements were
voluntarily and knowingly given and that there was no evidence of a constitutional
violation.

The State correctly points out that the duty to ensure adequate factual findings for
appellate review is borne chiefly by the district court. See K.S.A. 60-252; Rule 165(a)
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(2013 Kan. Ct. R. Annot. 265) (district court determining contested matter must set out
findings of fact and conclusions of law). But the party who seeks to raise on appeal an
issue that turns on the factual determinations also bears some responsibility. See K.S.A.
60-252(b); State v. Boleyn, 297 Kan. 610, 630-31, 303 P.3d 680 (2013) (noting failure to
object to lack of findings regarding necessary factors precluded appellate consideration of
constitutional cruel or unusual punishment challenge; if necessary, defendant must file
motion invoking judge's duty under Rule 165 to ensure sufficient findings for appellate
argument); cf. State v. Herbel, 296 Kan. 1101, 1119-20, 299 P.3d 292 (2013).

Although this court has cautioned that the best practice when determining the
voluntariness of a juvenile's inculpatory statements given to police is to consider on the
record each of the applicable factors, that warning is invariably accompanied by a
disclaimer that "[t]he district court need not explicitly consider these factors on the
record." State v. Ramos, 271 Kan. 520, 525, 24 P.3d 95 (2001); see also State v.
Makthepharak, 276 Kan. 563, 567, 78 P.3d 412 (2003) ("To date, we have not required
that a district court expressly review the factors set out in the Young case on the record.
We have, however, strongly suggested that the factors be considered."); State v. Bell, 276
Kan. 785, 796, 80 P.3d 367 (2003) (same); State v. Davis, 268 Kan. 661, 675-76, 998
P.2d 1127 (same), cert. denied 531 U.S. 855 (2000).

In Gibson's case, the trial court had before it the detective's testimony; the advice
of rights forms signed by Gibson and initialed on each sentence individually setting out
certain rights; transcribed copies of Gibson's video statements; and counsel's arguments.
The latter included an express acknowledgement by Gibson's lawyer that "obviously—
from the testimony of Detective Michael[ ], [Gibson] gave [his statements] voluntarily."
And the district court also gave Gibson an opportunity to present evidence before ruling,
which Gibson declined. From all of this, the court found Gibson's statements were
voluntarily and knowingly given and were made without any constitutional violation. In
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addition, at the hearing on the motion for reconsideration, the district court noted from
the evidence that Gibson was not under undue influence from alcohol or drugs, made
appropriate answers to the questions posed to him by detectives, and appeared to
understand what was going on during the interviews.

Based on the facts presented, the applicable factors, and our caselaw, we hold the
record is sufficient for appellate review. It is evident the analysis and outcome on the
voluntariness issue would not have changed even if the trial court had been more explicit
about the factors it considered. See Makthepharak, 276 Kan. at 567.

In asking this court to consider the totality of the circumstances surrounding the
October 12, 2008, interview, Gibson focuses on the following: (1) his marijuana use
shortly before the initial contact with police in his backyard that made him incapable of
understanding his Miranda waivers, i.e., his mental state; (2) his age; and (3) the fact he
was overly impressed and intimidated by the detectives, i.e., his mental state and prior
experience with police.

Gibson was 17 at the time of his interview with police. This is well above the
bright-line rule set in our caselaw that has held parental involvement is only required
when the juvenile is 14 or younger. See Ramos, 271 Kan. at 526. The length of the first
encounter at the station was about 2 hours and 45 minutes before Gibson gave his first
video statement. This length of time was reasonable given the seriousness of the crime
and the evidence that some of this time was used to review computerized mug shots and
for cigarette breaks. Cf. Makthepharak, 276 Kan. at 564, 568 (5 1/2-hour interview
reasonable in light of serious charges, number of suspects, and defendant's efforts to
minimize his involvement). The uncontroverted testimony was that the questioning was
not confrontational and Gibson was polite and cooperative. The record also reflects
Gibson had a ninth grade education. See 276 Kan. at 563-64, 568 (statements found
15



voluntary under totality of circumstances including that defendant had equivalent of
seventh-grade education); Ramos, 271 Kan. at 527-28 (statements found voluntary under
totality of circumstances including that defendant had equivalent of ninth-grade
education).

As for Gibson's marijuana use, within first 6 minutes of his October 12 video
statement, Gibson was asked whether he was "currently" under the influence of drugs or
alcohol. He responded he was not. He was then asked whether he had used any drugs or
alcohol at any time that day, and he said yes. Gibson then explained that he had used
marijuana about 3 hours earlier. He was then asked if that meant 3 hours before his
contact with the officers at his home, and he answered in the affirmative. Those responses
then prompted Detective Michael to ask whether during the time they had been together
Gibson had understood the officers' questions, his answers could be recalled, and he had
"control of [his] mind." Gibson responded affirmatively.

In addition, prior to Gibson mentioning his marijuana use earlier in the day, during
the introductory minutes of the video Gibson had promptly and clearly stated and spelled
his name; stated his birthdate, address, and phone number; identified who he lived with;
read out loud his advice of rights form; responded promptly and clearly to the detective's
recitation of his Miranda rights; confirmed he was willing to "set aside" those rights; and
verified he had been treated fairly by officers, had not been threatened, and did not feel
uncomfortable. Finally, Detective Michael testified that he was familiar with people who
had been under the influence of drugs or alcohol and Gibson exhibited no signs of being
under such an influence.

In this case, the record provides substantial competent evidence that Gibson's
statements were knowingly and voluntarily given. And our de novo review of the trial
court's legal conclusions leads us to hold that Gibson's statements were voluntary. Based
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on the totality of circumstances, we conclude the trial court did not err in admitting
Gibson's statements.

NO ERROR IN REFUSING GIBSON'S TESTIMONY

Gibson next argues the district court committed structural error when it refused to
allow Gibson to testify or proffer his testimony at the hearing on the pro se suppression
motion to reconsider the trial court's earlier ruling that Gibson's statements to police were
voluntarily given. He asks this court to hold "a defendant's right to testify on his own
behalf is so basic to a fair trial that its violation constitutes structural error and requires
automatic reversal." Gibson analogizes his case to State v. Jones, 290 Kan. 373, 382, 228
P.3d 394 (2010), in which the court held structural error occurred when a district court
denied the right to self-representation to a defendant at a preliminary hearing.

Standard of Review

To determine our standard of review we must first decide the nature of the issue
before us. To be sure, it is not a question of structural error, which we have said is a rare
classification. See Jones, 290 Kan. at 382 (quoting Arizona v. Fulminante, 499 U.S. 279,
309-10, 111 S. Ct. 1246, 113 L. Ed. 2d 302 [1991]); Boldridge v. State, 289 Kan. 618,
627, 215 P.3d 585 (2009) ("Structural error only occurs in very limited circumstances
. . . ."); see also Fulminante, 499 U.S. at 309-10 (describing structural errors as "structural
defects in the constitution of the trial mechanism, which defy analysis by 'harmless-error'
standards[,]" and errors that "affect[ ] the framework within which the trial proceeds.").

Gibson's citation to Jones and his analogy to the right to self-representation are
unavailing. The right to testify in one's own defense is limited, for example, by rules of
evidence and procedure governing the conduct of criminal proceedings. See State v.
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Stano, 284 Kan. 126, 137, 159 P.3d 931 (2007) (holding defendant's exculpatory pretrial
statements to police subject to exclusion at trial under hearsay rule); see also State v.
Wells, 289 Kan. 1219, 1235, 221 P.3d 561 (2009) ("'[T]he right to present a defense is
subject to statutory rules and case law interpretation of the rules of evidence and
procedure.'"). And a motion to suppress does not even trigger the right to a hearing on the
merits unless it alleges grounds that, if proven, would render the confession inadmissible.
K.S.A. 22-3215(3).

The State correctly argues that the issue is not whether structural error was
committed, but whether the district court properly refused to reconsider its prior
determination that the statements were voluntary. It points out that "the decision to rehear
an earlier motion is a matter which lies within the sound discretion of the trial court."
State v. Riedel, 242 Kan. 834, 837, 752 P.2d 115 (1988) (citing State v. Jackson, 213
Kan. 219, Syl. ¶ 1, 515 P.2d 1108 [1973]).

In State v. Miles, 233 Kan. 286, 662 P.2d 1227 (1983), the court specifically
addressed whether a trial court was required to rehear a motion to suppress a defendant's
statement after it already considered and denied suppression based on the same facts and
issues. The court held that under such circumstances "there is no requirement that the
hearing be repeated." 233 Kan. at 295. Similarly, in State v. Holmes, 278 Kan. 603, 102
P.3d 406 (2004), the court considered whether the trial court was required to reentertain
an earlier motion to suppress that had been denied. The court held: "The decision to
rehear an earlier motion is a matter which lies within the sound discretion of the trial
court." 278 Kan. at 620.

Whether to reopen suppression hearings to take additional evidence is similarly
regarded as a discretionary function of the trial court in other state and federal
jurisdictions. See, e.g., United States v. Ozuna, 561 F.3d 728, 735 (7th Cir. 2009) (no
18



abuse of discretion in reopening suppression hearing to consider evidence calling into
question credibility of defendant's testimony at hearing); In re Terrorist Bombings, U.S.
Embassies, E. Africa, 552 F.3d 177, 196 (2d Cir. 2008) (reviewed for abuse of discretion
trial court's decision to allow prosecution to present additional evidence of voluntariness
of statements previously suppressed by trial court); United States v. Gill, 513 F.3d 836,
846 (8th Cir. 2008) (no abuse of discretion in refusing to reopen evidence on motion to
suppress; new evidence had little probative value, and court previously heard all relevant
testimony and made credibility determinations and factfindings); People v. Patterson,
154 Ill. 2d 414, 447-50, 610 N.E.2d 16 (1992) (no error in refusing to reopen suppression
hearing for additional officer testimony; trial court's determination that further evidence
would not be admitted after previously hearing testimony of less than all material
witnesses that State could have called was within court's discretionary power).

We hold the issue raised by Gibson is subject to review based on an abuse of
discretion standard. An abuse of discretion occurs when judicial action was (1) arbitrary,
fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted
by the trial court; (2) based on an error of law, i.e., if the discretion was guided by an
erroneous legal conclusion; or (3) based on an error of fact, i.e., if substantial competent
evidence does not support a factual finding on which a prerequisite conclusion of law or
the exercise of discretion was based. State v. McCullough, 293 Kan. 970, 980-81, 270
P.3d 1142 (2012).

Discussion

The motion to reconsider asserted that the court should reconsider because Gibson
was only 17 when he gave the statements, was "overly impressed and felt intimidated by"
the detectives, and had told Michael he was under the influence of marijuana. In
prefacing her arguments to the court, Gibson's attorney said her client "wants me to
19



address the Court about [his pro se motion]." She then argued briefly the points made in
the motions without elaboration and without adding any new issues. It was not until the
court denied Gibson's motion that the defense took a new tact and asked, "Would the
Court put [Gibson] under oath just to be on the record so he can put that on the record?"

We see no abuse of discretion. First, Gibson cites no legal authority to support the
argument that he had a right to compel the district court to reopen the evidentiary record
and allow him to testify in support of suppression once he had given up that opportunity
at a prior hearing. See State v. Torres, 280 Kan. 309, 331, 121 P.3d 429 (2005) (simply
pressing point without pertinent authority or without showing why it is sound despite lack
of supporting authority or in the face of contrary authority akin to failing to brief point;
issue deemed waived or abandoned; defendant failed to demonstrate abuse of discretion
in court's denying mistrial motion and denying hearing on allegations of prosecutorial
misconduct); see also State v. Garza, 290 Kan. 1021, 1034, 236 P.3d 501 (2010) ("Issues
raised in passing that are not supported by argument or cited authority are deemed
waived."). In addition, we are aware of no such authority. We have held that a defendant
may testify at a Jackson v. Denno hearing regarding voluntariness of statement or
confession without waiving his or her Fifth Amendment privilege. State v. Bogguess, 293
Kan. 743, 750-51, 268 P.3d 481 (2012); see Jackson v. Denno, 378 U.S. 368, 376, 84 S.
Ct. 1774, 12 L. Ed. 2d 908 (1964). But we have not held that a defendant has a right to
testify regarding suppression whenever he or she sees fit after twice giving up that
opportunity at a prior hearing.

Second, the fact that Gibson contemporaneously objected to the admission of his
statements under K.S.A. 60-404 when the State offered them into evidence at trial does
not mean a new evidentiary hearing on their admissibility was warranted. See Miles, 233
Kan. at 295 (repeating suppression hearing unnecessary if defendant objects to admission
of confession at trial when, after Jackson v. Denno hearing on same facts and issues,
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confession already had been determined voluntary). No new issue or newly discovered
evidence was offered in counsel's motion to reconsider or Gibson's pro se motion to
suppress, and counsel did not argue any existed. She did not claim Gibson repudiated
what he had said during his recorded statement about his earlier marijuana use, and it
already had been noted he was 17 and likely afraid and intimidated during portions of his
interview. In fact, the transcript from the second hearing indicates the prospect of having
Gibson testify as a proffer of that evidence was an afterthought following the district
court's denial of Gibson's pro se motion, as opposed to a planned evidentiary presentation
to support granting reconsideration.

But just as importantly, the uncontroverted evidence from the first hearing
addressed each issue asserted in the motions for reconsideration—particularly Gibson's
consumption of marijuana. Defense counsel even conceded at the first hearing that
Gibson gave the statements to police voluntarily.

This is not a case in which refusal to reopen the suppression hearing actually
denied Gibson the opportunity to testify. Gibson declined the opportunity in the regular
course of the Jackson v. Denno hearing and then about 4 months later simply changed his
mind. Compare People v. Peterson, 6 A.D.3d 363, 364, 777 N.Y.S.2d 48 (2004) (district
court did not abuse discretion in refusing to allow defendant to testify at reopened
suppression hearing; defendant could have testified but declined to do so at initial
hearing), with Franklin v. State, 74 Wis. 2d 717, 720-24, 247 N.W.2d 721 (1976) (abuse
of discretion to refuse to reopen suppression hearing, convened expressly to hear
defendant's testimony, when defendant was 30 minutes late due to car trouble; attorney
had proffered defendant's testimony in defendant's absence, which was both material and
indicated defendant's desire to testify; and refusal effectively denied defendant any
opportunity to testify).

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Under the circumstances, a reasonable person could agree with the district court's
decision to deny Gibson a second opportunity to testify and his request to proffer such
testimony. We hold the district court did not abuse its discretion.

Affirmed.