State v. Gilliland (corrected May 14, 2012)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,265

STATE OF KANSAS,
Appellee,

v.

VERNON GILLILAND,
Appellant.


SYLLABUS BY THE COURT


1.
In reviewing a trial court's ruling on a suppression issue, an appellate court
reviews the factual underpinnings of a decision under a substantial competent evidence
standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The
appellate court does not reweigh evidence, assess the credibility of the witnesses, or
resolve conflicting evidence.

2.
For an evidentiary issue to be preserved for appeal under K.S.A. 60-404, the trial
court must be provided the specific objection so it may consider as fully as possible
whether the evidence should be admitted and therefore reduce the chances of reversible
error. Thus, a defendant may not object to the introduction of evidence on one ground at
trial and then assert a different objection on appeal.



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3.
To determine whether an accused's confession is voluntary, a court looks at the
totality of the circumstances. The prosecution bears the burden of proving that a
confession is admissible by a preponderance of the evidence. Nonexclusive factors
include: (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 background; (5) the fairness of the officers in
conducting the interrogation; and (6) the accused's fluency with the English language.

4.
The nonexclusive factors relating to whether an accused's confession is voluntary
are not to be weighed against one another, 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. 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
confession was not therefore a free and voluntary act.

5.
The fact that an accused had been drinking or using drugs does not per se establish
involuntariness of the accused's confession. All circumstances surrounding the giving of
the statement must be examined to determine if the intoxication prevented the accused
from voluntarily making a statement.

6.
The right to privacy under the Fourth Amendment to the United States
Constitution is measured by a two-part test: (1) The person must have a subjective
expectation of privacy; and (2) that expectation must be one that society recognizes as
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reasonable. Generally, a jail or prison inmate's right of privacy fails both prongs of the
test. First, an inmate's privacy interest is severely limited by the status of being a prisoner
and by being in an area of confinement that shares none of the attributes of privacy of a
home, an automobile, an office, or a hotel room. Second, society would insist that the
prisoner's expectation of privacy always yields to what must be considered the paramount
interest in institutional security.

7.
K.S.A. 21-4001 and K.S.A. 21-4002 are not violated when a jail records an
inmate's telephone conversations with someone other than the inmate's attorney if the
inmate has been given notice that the call will be monitored. Both statutes have consent
exceptions, and the inmate consents to the recording through the action of continuing
with the call with the knowledge that the call may be monitored.

8.
Relevance, in addition to being the focus of general considerations regarding the
admission of evidence, is the key consideration when applying the rape shield statute,
K.S.A. 21-3525.

9.
K.S.A. 60-401(b) defines relevant evidence as evidence that is material and
probative. In determining whether the evidence is material, the analysis focuses on
whether the fact to be proved is a fact that has a legitimate and effective bearing on the
decision of the case and is in dispute. Evidence is probative if it has any tendency to
prove any material fact.

10.
The relevance of evidence is not determined by whether the evidence is
corroborated or not.
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11.
An appellate court must disregard all errors that have not prejudicially affected the
substantial rights of the party complaining, where it appears upon the whole record that
substantial justice has been done by the judgment.

12.
To determine if a judgment is consistent with substantial justice, an appellate court
must determine whether any errors in a proceeding affected the outcome of a trial in light
of the entire record.

13.
The degree of certainty by which a court must be persuaded that an error did not
affect the outcome of a trial will vary depending on whether the failure infringes upon a
right guaranteed by the United States Constitution. If it does not, the trial court should
apply K.S.A. 60-261 and determine if the party benefitting from the error establishes
there is a reasonable probability that the error will not or did not affect the outcome of the
trial in light of the entire record. If the failure does infringe upon a right guaranteed by
the United States Constitution, the trial court should apply the constitutional harmless
error analysis defined in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d
705, reh. denied 386 U.S. 987 (1967). Under Chapman, the error may be declared
harmless where the party benefitting from the error proves beyond a reasonable doubt
that the error complained of will not or did not affect the outcome of the trial in light of
the entire record, that is, if the benefitting party proves there is no reasonable possibility
that the error affected the verdict.

14.
If an error relates to the application of a rule of evidence or procedure and not to a
complete denial of a defense, the harmless error standard of K.S.A. 60-261 and K.S.A.
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60-2105 applies, rather than the constitutional harmless error standard of Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987
(1967).

15.
A trial court that undertakes the determination of whether a child victim's
statement is tainted by techniques used in the interview does not abuse its discretion by
conducting the determination as part of a hearing under K.S.A. 60-408 regarding whether
a witness is qualified.

16.
A trial court errs in giving an Allen-type jury instruction that states "[a]nother trial
would be a burden on both sides."

17.
In a cumulative error analysis, an appellate court aggregates all errors and, even if
those errors would individually be considered harmless, analyzes whether their
cumulative effect is such that collectively they cannot be determined to be harmless. In
other words, was the defendant's right to a fair trial violated because the combined errors
affected the outcome of the trial?

18.
A sentencing court departs from Jessica's Law, K.S.A. 21-4643, if it does not
impose a life sentence. If a different sentence is imposed, the sentencing court must state
the substantial and compelling reasons for departure and must depart to the applicable
guidelines grid box. Once the sentence becomes a guidelines sentence, the court is free to
depart as allowed by applicable statutes. However, departure findings must justify both
steps. The requirements of neither the first step into the guidelines nor the second step
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away from the presumptive guidelines sentence can be ignored, and all departure
procedures must be followed.

Appeal from Saline District Court; DANIEL L. HEBERT, judge. Opinion filed May 11, 2012.
Conviction affirmed, sentence vacated, and case remanded with directions.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause, and Heather Cessna, of
the same office, was on the brief for appellant.

Christina M. Trocheck, assistant county attorney, argued the cause, and Ellen Mitchell, county
attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Vernon Ray Gilliland was convicted by a jury of one count of
aggravated criminal sodomy with a child under 14 years of age. Because Gilliland was
over the age of 18 at the time of the offense, his conviction was for an off-grid person
felony. K.S.A. 21-3506(a)(1), (c). On direct appeal, Gilliland seeks reversal of his
conviction by arguing the trial court erred in: (1) denying his motion to suppress his
statements to the law enforcement officer at the scene; (2) denying his motion to suppress
the recordings of jailhouse telephone conversations; (3) excluding evidence under K.S.A.
21-3525(b), commonly known as the Kansas rape shield statute, regarding the victim's
previous sexual conduct; (4) denying his motion to hold a pretrial taint hearing to
determine the reliability of the victim's testimony and statements to law enforcement
officers; and (5) giving an Allen-type jury instruction. Gilliland also argues that
cumulative errors deprived him of a fair trial. We reject these arguments and affirm his
conviction.

Gilliland additionally raises several sentencing issues. Under Jessica's Law, K.S.A.
21-4643(a), the prescribed sentence for Gilliland's conviction was life imprisonment.
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Although the sentencing court denied Gilliland's motion for a departure sentence, the
court did not impose a life sentence. Instead, the court imposed a sentence under the
Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., for a specific term. Thus, the
effect of the sentence was contrary to the explicit finding of the sentencing court.
Because of the ambiguity created by a finding that contradicts the sentence, creating an
illegal sentence, we vacate the sentence and remand for resentencing. As a result, no
other sentencing issues are ripe.

FACTS AND PROCEDURAL BACKGROUND

Since the end of 2002, Gilliland lived in Salina, Kansas, with his girlfriend
Charlotte and her two children, D.N. and C.E. On the morning of June 9, 2007, Gilliland
woke up and went to the liquor store to purchase a bottle of liquor. He drank the contents
and then returned to the store to buy another bottle of liquor, which he also drank.
Gilliland subsequently walked to a local bar, where he stayed a "couple hours" and drank
some more—according to Gilliland as many as 15 more drinks—such as "Jack and
Cokes," "mixed drinks," and "beer." He played some video games and games of pool and
then walked home.

When Gilliland got home from the bar, it was early in the afternoon. Charlotte was
sleeping, and her two children were eating breakfast. D.N., Charlotte's son, eventually
went back to his bedroom to take a nap. Gilliland laid down on the couch in the living
room and watched sports on the television. C.E., Charlotte's 12-year-old daughter, sat in a
nearby chair. At some point, according to Gilliland's trial testimony, he felt a tingling
sensation in the back of his head. Then, he said he either fell asleep or "passed out" on the
couch and woke up to the feeling of Charlotte pulling his hair. He opened his eyes and
found C.E. straddling him with her bare buttocks near his face. Gilliland said he felt
"[k]ind of out of it."

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Gilliland related the tingling sensation in the back of his head to a seizure.
Gilliland suffers with epilepsy and, since approximately 1997, experiences seizures.
Although he takes a daily anti-seizure prescription medication for epilepsy, he continues
to have occasional seizures. Gilliland's seizures become more frequent with alcohol use.
He has also experienced alcohol-withdrawal seizures. A seizure can cause an episode of
unconsciousness, and Gilliland is disoriented for a short time when coming out of a
seizure.

Another account of the June 9 events was given by Charlotte, whose statements
changed over time. In her initial police interview, Charlotte said that around 3 p.m., she
walked out into the living room where she saw C.E., with her skirt pulled up and bare
buttocks exposed, "sitting" on Gilliland's face. Charlotte reported that Gilliland was fully
clothed and lying on his back, and C.E. was positioned so she was facing his feet.
Charlotte approached them from behind and could see C.E.'s bare buttocks and Gilliland's
forehead. She told officers that Gilliland's "mouth was on the genitals." Charlotte yelled
at C.E. and told her to go to her room and then "yanked" Gilliland's hair. She initially told
officers, "I just remember grabbing a handful of hair and [C.E.] jumped and he jumped
and [C.E.] went to her room." Charlotte then yelled at Gilliland and hit him with a
telephone.

Subsequently, when Charlotte recounted the events, she claimed Gilliland's left
hand was hanging "limp" off the edge of the couch, and she had to yank on Gilliland's
hair a second time before he "woke up." During trial, Charlotte testified that Gilliland had
a "glassy look in his eyes," was "searching for words," and was "bumping into things."
"[It was] like talking to someone who's not there." These details were not mentioned in
her initial statements to officers.

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At some point, Charlotte sent the children outside and called her friend Gina
Fletcher, who came over to the house right away. After hearing what happened, Fletcher
called 911.

Law enforcement dispatch advised Officer Anthony Fontanez that a 12-year-old
girl was possibly molested in the preceding 30 minutes. When Fontanez arrived at the
residence around 3:45 p.m., Gilliland was standing on the front porch, and Charlotte and
Fletcher were nearby. He initially talked to Fletcher, who told him that Charlotte had
walked in on Gilliland giving C.E. "oral sex." Based on this information, the officer
approached Gilliland and asked him, "Is that what happened?" to which Gilliland
responded, "Yeah, that's what happened." At that point, the officer immediately
Mirandized Gilliland. Then, the officer asked some clarifying questions—"Let me get
this right—you and the 12 year old?" Gilliland answered, "Yes." The officer asked,
"What were you doing?" and Gilliland responded, "Oral sex." Then, the officer placed
Gilliland into custody. As he was placing handcuffs on Gilliland, he smelled the faint
odor of alcohol.

Gilliland filed several pretrial motions. In two motions, he sought to suppress
evidence. One of these motions related to his statements to Fontanez and another officer
who interviewed him on the day of the alleged incident, and the second related to
jailhouse recordings of telephone conversations between himself and Charlotte. Both
motions were denied. Several other motions related to the victim, C.E. Specifically,
Gilliland requested a psychological evaluation of C.E.; sought the admission of evidence
of C.E.'s previous sexual conduct under the Kansas rape shield statute, K.S.A. 21-
3525(b); and sought to exclude from trial C.E.'s testimony and evidence of her statements
to officers. The trial court allowed the psychological examination of C.E. but denied all
other motions.

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At the jury trial, Gilliland presented the defense that he was unconscious during
the alleged incident and could not have performed the charged crime. In making this
claim, he did not assert a defense of voluntary intoxication. (Indeed, he could not have
because he was charged with a general intent crime, see State v. Prine, 287 Kan. 713,
727, 200 P.3d 1 [2009], and voluntary intoxication is not a defense to general intent
crimes under K.S.A. 21-3208[2]. State v. Brown, 291 Kan. 646, 654, 244 P.3d 267
[2011]). Rather, at least on appeal, his claim of unconsciousness is based on his history of
epilepsy.

The defense presented the testimony of Dr. William Logan as an expert witness.
Dr. Logan is board certified in psychiatry, neurology, and forensic psychiatry. Based on
Dr. Logan's evaluation of Gilliland, Dr. Logan testified Gilliland had a history of two
different conditions that "could have affected him" during the incident. One condition
was a seizure disorder, "which could have produced an episode of unconsciousness." The
other condition was alcoholism, which could involve "episodes of intoxication that
produced blackouts." Dr. Logan explained that a "blackout" is not necessarily a "time of
unconsciousness but it is a time when the individual may not have a memory later of
what transpired and during that time when they're intoxicated their judgment might be
impaired and they might be inclined to show unusual behavior that they wouldn't if they
were sober." This type of "alcoholic manifesto event" is different from a seizure in that a
person "perform[s] some sort of behavior and it may be very well organized behavior but
afterwards you do not remember it." Dr. Logan admitted that while it was possible that
Gilliland was either (1) unconscious or (2) blacked out at the time of the incident, that is,
he acted knowingly but had no memory of his actions, it was also possible that he simply
(3) feigned memory loss and knowingly pulled C.E. on top of him and knowingly licked
her vagina.

The jury apparently rejected the claim that Gilliland was having a seizure because
it convicted him of aggravated criminal sodomy. On direct appeal, he attacks his
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conviction and sentence. More facts, including more details related to the various
motions, will be discussed below, as needed.

ISSUE 1: SUPPRESSION OF STATEMENTS

Gilliland's first issue on appeal is that the trial court erred in denying his motion to
suppress his statements to Fontanez, the first responding law enforcement officer at the
scene. Gilliland makes two arguments based on separate legal theories.

In one argument, he seeks to suppress his pre-Miranda statement to the officer—
his affirmative response to the officer's question, "Is that what happened?" Gilliland
argues he was in custody when the officer asked the question and therefore he had a right
to receive his Miranda warnings before the officer began the interrogation. See Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890
(1966).

In the second argument, Gilliland focuses on his post-Miranda statements to the
officer. Gilliland argues his answers, in which he verified that he had oral sex with a 12
year old, should have been suppressed because he was under the influence of alcohol and,
as a result, his waiver of Miranda rights was not voluntary.

Standard of Review

An appellate court uses a well-known bifurcated standard when reviewing the
suppression of a defendant's statements:

"In reviewing a trial court's ruling on a suppression issue, the appellate court reviews the
factual underpinnings of the decision under a substantial competent evidence standard.
The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate
court does not reweigh evidence, assess the credibility of the witnesses, or resolve
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conflicting evidence. [Citations omitted.]" State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229
(2010).

a. Pre-Miranda Statement

The State argues that Gilliland failed to preserve the question of whether his pre-
Miranda statements must be suppressed.

For an evidentiary issue to be preserved for appeal under K.S.A. 60-404, "the trial
court must be provided the specific objection so it may consider as fully as possible
whether the evidence should be admitted and therefore reduce the chances of reversible
error." State v. Richmond, 289 Kan. 419, 429, 212 P.3d 165 (2009). Thus, a defendant
may not object to the introduction of evidence on one ground at trial and then assert a
different objection on appeal. State v. McCaslin, 291 Kan. 697, 707, 245 P.3d 1030
(2011); State v. Engelhardt, 280 Kan. 113, 127, 119 P.3d 1148 (2005); State v. Goseland,
256 Kan. 729, Syl. ¶ 1, 887 P.2d 1109 (1994).

Our independent review of the record confirms the State's assertion: Gilliland did
not assert a specific objection regarding a Miranda violation. At oral argument before this
court, Gilliland's attorney argued the motion to suppress was sufficiently broad to
incorporate the objection. We reject this contention. Gilliland's motion to suppress and
his arguments at the suppression hearing did not distinguish between pre-Miranda and
post-Miranda statements and solely focused on his post-Miranda statements. He
contended these "statements to police on June 9, 2007," should be suppressed because he
was "under the influence of an intoxicant at the time of questioning" and he "did not
knowingly and voluntarily waive" his constitutional rights. Thus, the focus was on his
mental acuity and whether his "statements to police were involuntary." This is a distinct
legal theory from the question of whether a person is in custody and, therefore, entitled to
be advised of his or her rights under Miranda.
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When defense counsel renewed Gilliland's objection to the admission of the
statements at trial, there was no mention of the pre-Miranda custody issue or a Miranda
violation. Thus, the trial court never had the opportunity to rule on the pre-Miranda issue
that Gilliland asserts for the first time on appeal.

Because Gilliland failed to object to the pre-Miranda statements at trial, he failed
to preserve the issue for appeal.

b. Post-Miranda Statements

Immediately after Gilliland's statement, "Yeah, that's what happened," Fontanez
notified Gilliland of his Miranda rights, received Gilliland's waiver, and asked, "Let me
get this right—you and the 12 year old?" Gilliland answered, "Yes." The officer asked,
"What were you doing?" and Gilliland responded, "Oral sex." Gilliland was handcuffed
and officially placed into custody. Gilliland argues these statements were not voluntary.

To determine whether an accused's confession is voluntary, a court looks at the
totality of the circumstances. The prosecution bears the burden of proving that a
confession is admissible by a preponderance of the evidence. Nonexclusive factors
include: (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 background; (5) the fairness of the officers in
conducting the interrogation; and (6) the accused's fluency with the English language.
State v. McMullen, 290 Kan. 1, 4, 221 P.3d 92 (2009); State v. Johnson, 286 Kan. 824,
836, 190 P.3d 207 (2008).

In State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 (2009), this court described the
weight an appellate court should give these factors:
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"'[T]hese factors are not to be weighed against one another . . ., 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.' [Citations omitted.]"

In this appeal, Gilliland only addresses one factor, his mental condition as
impacted by his intoxication. "'The fact that an accused had been drinking and using
drugs does not per se establish involuntariness.'" State v. Norris, 244 Kan. 326, 334-35,
768 P.2d 296 (1989) (quoting State v. Baker, 4 Kan. App. 2d 340, 343, 606 P.2d 120
[1980]). All circumstances surrounding the giving of the statement must be examined to
determine if the intoxication prevented the accused from voluntarily making a statement.
See State v. Swanigan, 279 Kan. 18, 23-40, 106 P.3d 39 (2005) (court will look at all
circumstances surrounding the giving of statement to determine whether statement was
product of free and independent will of the accused).

To make this assessment, in past cases we have noted a variety of factors that
provide substantial competent evidence regarding a trial court's determination that drug
or alcohol use did or did not prevent an accused from making a voluntary statement.
These factors have included such things as whether there were manifestations of
intoxication, the opinions of those who interacted with the accused about whether the
accused seemed intoxicated, the trial court's independent evaluation based on observing
or hearing the accused in a video or audio recording of the statement, the accused's
familiarity with the police's interview procedures, and the accused's familiarity with the
Miranda rights. Courts have noted markers such as whether an accused's answers were
precise, normal, rational, or responsive; whether the accused was coherent and wide
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awake; and whether there was a detectable odor, swaying, bloodshot eyes, slurred speech,
or other physical signs of intoxication. If the trial court has relied on some of these
factors in ruling a statement was voluntary, an appellate court examines only whether
there is substantial competent evidence to support the trial court's findings; an appellate
court does not reweigh the evidence or independently reach our own determination of
voluntariness. See, e.g., State v. Harris, 293 Kan. 798, 807-09, 269 P.3d 820 (2012) (at
time of statement, defendant said nothing about drug or alcohol consumption and did not
appear impaired to officers); State v. Bogguess, 293 Kan. 743, 752-53, 268 P.3d 481
(2012) (defendant told officers of drug use but that effect had worn off, and he appeared
lucid); State v. Cofield, 288 Kan. 367, 370-72, 203 P.3d 1261 (2009) (although defendant
reported using drugs, he gave detailed statement with explicit descriptions in response to
open-ended questions); State v. Kirkpatrick, 286 Kan. 329, 341-42, 184 P.3d 247 (2008)
(defendant answered questions normally and appeared to be tracking, no detectible odor
of alcohol or marijuana, and officer did not suspect intoxication); State v. Bell, 280 Kan.
358, 364, 121 P.3d 972 (2005) (trial court observed defendant's demeanor on videotape
was similar to his demeanor in the courtroom); State v. Donaldson, 279 Kan. 694, 713-
14, 112 P.3d 99 (2005) (detective testified defendant responded appropriately and did not
appear intoxicated); State v. Jacques, 270 Kan. 173, 188-89, 14 P.3d 409 (2000)
(defendant answered questions coherently, followed the conversation, had experience
with the Miranda form, and had been questioned by officers on previous occasion); State
v. McCorkendale, 267 Kan. 263, 271, 979 P.2d 1239 (1999) (defendant appeared
"coherent" when speaking with officers, understood his Miranda rights, rationally
responded to officers' questions, and did not have slurred speech), overruled on other
grounds by State v. King, 288 Kan. 333, 204 P.3d 585 (2009).

In this case, conflicting evidence was presented regarding many of these factors or
markers. Some evidence supports that Gilliland was highly intoxicated. In Charlotte's and
Fletcher's testimony, they said things like: Gilliland's speech was "[s]lurred and kind of
slow"; he was "staggering, like he was having problems walking a little bit"; "[h]is eyes
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were kind of closed"; and "he didn't seem like he was completely coherent." Charlotte
also testified that she later found two empty liquor bottles under the couch. Gilliland
reported a high alcohol intake and claimed he could not remember "much" about the day
of the incident. He said he remembered a "little bit" of what the officer was saying to
him. On cross-examination, when asked if he knew he had a right "not to talk to"
Fontanez, Gilliland said, "Well, yeah, I know my Miranda rights, but, hell, at the time I
didn't know nothing" because of the alcohol. Gilliland further claimed that he was still
"buzzed" when he spoke to officers at the police station.

On the other hand, contrary to Gilliland's claim that he could not remember much
about the day, he was able to recount considerable detail regarding his two trips to the
liquor store; his visit to a bar, including the number and types of drinks he consumed
while there; his return home where he remembered watching sports on television and that
C.E. was eating cereal and D.N. was having waffles; his awakening when Charlotte
pulled his hair; his arrest; his trip to the police station; and his interrogation at the police
station. He testified he remembered Fontanez as the officer who was on the scene, and he
admitted he had been Mirandized on past occasions.

Additionally, Fontanez and Officer Shawn Moreland, who transported Gilliland to
the police station and later interviewed him, testified on behalf of the State at the
suppression hearing. The record shows that Fontanez made an audio recording of his
contact with Gilliland, Charlotte, and Fletcher, and the recording was played for the judge
at the suppression hearing. Fontanez testified Gilliland was standing freely, not swaying
or staggering, never stumbled, was able to respond quickly and coherently to his
questions, and needed no assistance getting into the patrol car. The officer also thought
Gilliland's speech was clear and understandable. It was not until the officer was placing
handcuffs on Gilliland that he smelled the odor of alcohol. According to Fontanez,
nothing about Gilliland's demeanor made him appear to be under the influence of alcohol
or unable to understand the officer's questions. In fact, before telling Gilliland to get into
17

the patrol car, Fontanez asked him if he had anything sharp or illegal in his pockets, and
Gilliland reported there was a knife in his pocket.

Moreland's interview of Gilliland occurred at the police station a couple hours
later. Moreland testified at the suppression hearing that before questioning Gilliland, he
advised Gilliland of his Miranda rights, and Gilliland signed a written waiver. When
asked about Gilliland's activities during the day, Gilliland answered in considerable
detail. When questioning turned to the alleged incident, Gilliland said he did not want to
answer any other questions without his attorney present. The interview was then
terminated.

After hearing this evidence, the trial court denied the motion to suppress. The
court applied the correct standard, noted the evidence it had heard, and concluded that
while Gilliland's "[v]ery self-serving testimony and selective recall of events . . . may be
indicative of some degree of intoxication[, they] also would belie such intoxication that
would prevent the defendant from having made a voluntary statement."

There is substantial competent evidence to support this conclusion. Gilliland was
coherent, responsive to questions, and able to remember many details about the day.
According to Fontanez, Gilliland did not exhibit any physical signs of intoxication,
except an odor of alcohol that could be detected only when the officer was close enough
to place Gilliland in handcuffs. And he was familiar with Miranda warnings from past
encounters and demonstrated his right to exercise his right to remain silent by cutting off
Moreland's interview. Furthermore, there are no other factors suggesting that the
statement was involuntary.

The trial court did not err in denying Gilliland's motion to suppress his post-
Miranda statements.

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ISSUE 2: SUPPRESSION OF RECORDED JAILHOUSE TELEPHONE CONVERSATIONS

Next, Gilliland argues the trial court erred in denying his motion to suppress the
recordings of his jailhouse telephone conversations with Charlotte. The same standard of
review applies to this issue.

The conversations at issue occurred while Gilliland was being held in the Saline
County Jail on the charges in this case. During that time, his telephone conversations with
Charlotte were recorded as part of jail policies and procedures. At the beginning of each
conversation, the recording system sent out an audio warning to the participants, stating,
"This call is subject to monitoring or recording." Gilliland had multiple conversations
with Charlotte about his defense strategy, his hopes that C.E. would not testify, and the
possibility that Charlotte might be called to testify against him and how they could avoid
it. Several recordings were entered into evidence at trial and played in open court,
presumably to attack the credibility of Gilliland's defense that he was unconscious during
the incident in question.

In Gilliland's motion to suppress, he argued the interception of these telephone
calls violated his reasonable expectation of privacy in violation of two criminal statutes,
K.S.A. 21-4001 (eavesdropping) and K.S.A. 21-4002 (breach of privacy).

The basic premise of Gilliland's argument—that he had a reasonable expectation
of privacy in his jailhouse conversations—fails to recognize the limits on a prisoner's
right to privacy. The right to privacy under the Fourth Amendment to the United States
Constitution is measured by a two-part test: (1) The person must have a subjective
expectation of privacy; and (2) that expectation must be one that society recognizes as
reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576
(1967) (Harlan, J., concurring). Generally, a jail or prison inmate's right of privacy, at
least outside the context of communications with an attorney, fails both prongs of the
19

Katz test. First, an inmate's privacy interest is severely limited by the status of being a
prisoner and by being in an area of confinement that "shares none of the attributes of
privacy of a home, an automobile, an office, or a hotel room." Lanza v. New York, 370
U.S. 139, 143, 82 S. Ct. 1218, 8 L. Ed. 2d 384 (1962). Second, "society would insist that
the prisoner's expectation of privacy always yield to what must be considered the
paramount interest in institutional security." Hudson v. Palmer, 468 U.S. 517, 528, 104 S.
Ct. 3194, 82 L. Ed. 2d 393 (1984). Therefore, "the Fourth Amendment proscription
against unreasonable searches does not apply within the confines of the prison cell."
Hudson, 468 U.S. at 526.

Similar limitations have been found to apply to telephone conversations of
prisoners. These limitations rest on the doctrine that the Fourth Amendment prevents the
government from tapping a person's telephone or otherwise eavesdropping on private
conversations without good cause and a proper search warrant; if a conversation is not
private, the Fourth Amendment protections do not apply. See Katz, 389 U.S. at 357-59.
Hence, the reduced expectation of privacy in a jail or prison setting necessarily defeats an
inmate's claim of a reasonable expectation that his or her calls are private under the
Fourth Amendment. See, e.g., United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir.),
cert. denied 519 U.S. 912 (1996) (holding that individuals who are incarcerated while
awaiting trial do not have any expectation of privacy in outgoing telephone calls that are
made on jail telephones); Romo v. Champion, 46 F.3d 1013, 1017-18 (10th Cir.), cert.
denied 516 U.S. 947 (1995) (recognizing that prison authorities must be afforded wide-
ranging discretion in adopting policies designed to preserve institutional security);
Jackson v. State, 18 So. 3d 1016, 1030 (Fla. 2009), cert. denied 130 S. Ct. 1144 (2010)
(defendant was aware through automated warnings that jail would record and monitor his
communication and, thus, implicitly consented to the interception; defendant did not have
a legitimate, reasonable expectation of privacy under the circumstances; interest in
institutional security allowed jailhouse conversations to be monitored); State v. Maass,
20

275 Kan. 328, 335, 64 P.3d 382 (2003) (convicted persons have diminished expectation
of privacy in the penal context).

Furthermore, the State argues that Gilliland's statutory argument also fails because,
through his actions, he consented to having his calls monitored, and the statutes he
cites—K.S.A. 21-4002 and K.S.A. 21-4001(a)(3)—contain a consent exception. Gilliland
does not disagree with this interpretation of the statutes but contends he did not consent.

One of the statutes on which Gilliland relies, K.S.A. 21-4002(a)(1), prohibits
"[i]ntercepting, without the consent of the sender or receiver, a message by telephone . . .
or other means of private communication." (Emphasis added.) The other statute, K.S.A.
21-4001(a)(3), deals with violations of personal rights and prohibits, in part, the use of
"any device or equipment for the interception of any telephone . . . or other wire
communication without the consent of the person in possession or control of the facilities
for such wire communication." (Emphasis added.) In this appeal, the parties have not
discussed the meaning of the phrase "the person in possession or control of the facilities
for such wire communication" and whether Gilliland would qualify. Because the parties
have assumed Gilliland is in possession or control, we will proceed on this assumption,
even though this point seems subject to debate, and will consider the parties' arguments
regarding whether Gilliland consented.

Gilliland, in arguing that he did not give adequate consent to the recordings,
asserts the "simple warning that the calls are being monitored or recorded is insufficient
to put the jail inmate on notice that those calls may ultimately be utilized in his or her
prosecution." Gilliland acknowledges a similar argument was rejected in State v.
Andrews, 39 Kan. App. 2d 19, 176 P.3d 245 (2008), in the context of Kansas' wiretapping
statutes, K.S.A. 22-2514 et seq. Nevertheless, Gilliland contends, without citing any
supporting authority, that Andrews was wrongly decided.

21

In Andrews, the defendant filed a motion to suppress recordings of his jailhouse
telephone conversations. Citing the wiretap statutes, Andrews contended the Johnson
County Sheriff's Department was required to get judicial approval before it could record
or listen to his outgoing telephone calls.

At the suppression hearing, testimony established that a prisoner's telephone calls
were monitored as a way to assist in maintaining the security of the jail. The jail policy
handbook, which was available to inmates, discussed the telephone monitoring system
and advised that calls were recorded. During all conversations, the system sent out an
audio warning informing both parties that the call was being recorded.

The trial court denied Andrews' motion to suppress and ruled that Andrews, by
using the jail telephones, consented to his conversations being monitored and recorded.
The court concluded that fair warnings were given to inmates and there was no
reasonable expectation of privacy. Consequently, there was no violation in light of the
valid consent.

The Court of Appeals affirmed, noting that Andrews' consent meant the
wiretapping statute did not prevent the recording. Andrews, 39 Kan. App. 2d at 25. The
Andrews court quoted K.S.A. 22-2515(c), which allows the contents of a conversation to
be disclosed in court if the information was received "by any means authorized by this act
or by chapter 119 of title 18 of the United States code." Chapter 119 of Title 18 of the
United States Code includes 18 U.S.C. § 2511(2)(c) (2006), which states: "It shall not be
unlawful under this chapter for a person acting under color of law to intercept a wire,
oral, or electronic communication, where such person is a party to the communication or
one of the parties to the communication has given prior consent to such interception."
(Emphasis added.)

22

The Andrews court reiterated the various warnings that were given and concluded:
"[B]ased on all the warnings in the case," Andrews gave consent. Andrews, 39 Kan. App.
2d at 24. In support of this conclusion, the Andrews court looked to a decision of the
Wisconsin Court of Appeals in State v. Riley, 287 Wis. 2d 244, 704 N.W.2d 635 (2005),
where the Wisconsin Electronic Surveillance Control Law (WESCL), a statute mirroring
the language of 18 U.S.C. § 2511(2)(c), was applied to hold that a prisoner consented to a
recording when he used the phone after hearing a recording that stated the call may be
recorded.

The Riley court reviewed federal circuit court cases applying the consent
exception of 18 U.S.C. § 2511(2)(c) in prison settings because the WESCL, like K.S.A.
22-2514 et seq., was patterned after Title III of the federal Omnibus Crime Control and
Safe Streets Act of 1968. Riley, 287 Wis. 2d at 251; see generally State v. Farha, 218
Kan. 394, 398, 544 P.2d 341 (1975), cert. denied 426 U.S. 949 (1976). Summarizing
these cases, the Riley court noted that the federal circuit courts "have overwhelmingly
concluded that an inmate has given implied consent to electronic surveillance when he or
she is on notice that his or her telephone call is subject to monitoring and recording and
nonetheless proceeds with the call. [Citations omitted.]" Riley, 287 Wis. 2d at 251.

The Wisconsin court spoke of the notice requirement as one of "meaningful
notice." In discussing what "meaningful notice" meant for purposes of providing implied
consent to surveillance of institutional telephone calls, the Wisconsin court stated:

"Meaningful notice may include a signed acknowledgment form, an informational
handbook or orientation session, a monitoring notice posted by the outbound telephone,
or a recorded warning that is heard by the inmate through the telephone receiver, prior to
his or her making the outbound telephone call. See [United States v.] Footman, 215 F.3d
[145,] 154 [1st Cir. 2000] (signed form, notices on phones and prerecorded messages
played when phone calls placed); [United States v.] Amen, 831 F.2d [373,] 379 [2d Cir.
1987] (federal prison regulations, orientation lecture, informational handbook and signs
23

posted); [United States v.] Willoughby, 860 F.2d [15,] 20 [2d Cir. 1988] (orientation
lecture, signs posted, signed form); [United States v.] Workman, 80 F.3d [688,] 693 [2d
Cir. 1996] (posted signs, orientation handbook and signed form); [United States v.]
Hammond, 286 F.3d [189,] 191-92 [4th Cir. 2002] (handbook, consent form, orientation
lesson, and notices posted near phones); [United States v.] Horr, 963 F.2d [1124,] 1126
[8th Cir. 1992] (orientation handbook and lesson, consent form, posted signs); [United
States v.] Van Poyck, 77 F.3d [285,] 292 [9th Cir. 1996] (posted signs, consent form and
prison manual); People v. Kelley, [103 Cal. App. 4th 853, 858-59,] 127 Cal. Rptr. 2d 203,
206-07 (Ct. App. 2002) (citing federal cases for proposition that meaningful notice would
include a monitoring notice posted by a phone 'or a recorded warning that is heard by
the inmate') (emphasis added; citation omitted) [, overruled on other grounds by People
v. Windham, 145 Cal. App. 4th 881, 51 Cal. Rptr. 3d 884 (2006)]." Riley, 287 Wis. 2d at
253-54.

See also United States v. Faulkner, 323 F. Supp. 2d 1111, 1117-18 (D. Kan. 2004)
(discussing other cases and holding notice before use of phone was sufficient to satisfy
consent exception to federal wiretapping act).

In Andrews, our Court of Appeals applied these authorities and held that Andrews
knowingly consented to the monitoring of his telephone calls by using the phone after
hearing the recording. Andrews, 39 Kan. App. 2d at 24-25. Because of this consent, the
federal wiretap laws allowed the recording of the conversation. And, the Andrews court
concluded, because the recording was allowed under the federal law, the Kansas statute
allowed the introduction of the recordings into evidence.

This conclusion is not directly applicable in this case because Gilliland does not
rely on the wiretap statute, as Andrews did, but on K.S.A. 21-4001 (eavesdropping) and
K.S.A. 21-4002 (breach of privacy), and neither of these statutes are mentioned in
Andrews. Nevertheless, the analysis is applicable because K.S.A. 21-4001 and K.S.A. 21-
4002, like Kansas' criminal procedure wiretapping statutes, closely parallel the federal
Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2511 (2006). See State v.
24

Wigley, 210 Kan. 472, 474, 502 P.2d 819 (1972). And K.S.A. 21-4002(a)(1) provides for
an exception to the statutory right of privacy if one party to the communication consents.
Likewise, K.S.A. 21-4001(a)(3) does not apply if there is consent from the person in
control or possession of the facilities for the wire communication, who the parties
interpret to be Gilliland.

Gilliland argues we should not adopt the Andrews reasoning and should impose a
Miranda-like requirement notifying an inmate that anything he or she says can be used in
court. Gilliland cites no support for this contention, however. Nor does he explain a
reason such a warning would be required, and we can discern no doctrinal basis for
extending the right in this circumstance. The Miranda rights are designed to protect
constitutional rights―rights that are not at issue here. But an inmate does not have a
constitutional right to privacy in a jail setting―the only constitutional right mentioned by
Gilliland. See Faulkner, 323 F. Supp. 2d at 1118 (use of phone in jail a privilege; neither
pretrial detainee nor sentenced prisoner have full range of freedoms of unincarcerated
individual). Consequently, we find no basis to impose the Miranda-style warning in the
situation of a jail or prison recording an inmate's telephone conversation.

We adopt the analysis in Andrews and apply it to the statutes relied upon by
Gilliland. Under the Andrews analysis, reasonable notice was given to Gilliland.
Testimony from a surveillance officer at the county jail established that the jail
telephones were wall-mounted and were not located in any type of privacy enclosure.
Further, the officer testified Gilliland and the other inmates were warned that telephone
calls they made from the county jail were being recorded. The same audio warning was
played when inmates and visitors communicated by telephone through glass panels inside
the jail. Additionally, the jail's written policies made it clear that conversations were
recorded except for conversations between inmates and their attorneys, which are not
recorded due to the attorney-client privilege.

25

Given the warnings at the beginning of a telephone conversation that telephone
conversations would be monitored and might be recorded, Gilliland knowingly consented
to the recording of his phone conversations through his action of using the phone, and
whatever rights he had under K.S.A. 21-4001 and K.S.A. 21-4002 were not violated.

The trial court did not err in denying Gilliland's motion to suppress the recorded
jailhouse conversations.

ISSUE 3: EXCLUSION OF EVIDENCE UNDER RAPE SHIELD STATUTE

Next, Gilliland argues that the trial court erred by excluding evidence under
K.S.A. 21-3525, commonly known as the Kansas rape shield statute. At trial, Gilliland
sought to introduce evidence of C.E.'s history of exhibiting sexual behavior, including
evidence of C.E. masturbating with dolls at a young age; "humping" the arm of the living
room couch on a couple occasions; infringing on the personal space of others; touching
both men and women in places, such as their inner thigh, that made them uncomfortable;
being "clingy"; and grabbing the groin area of men. Gilliland argues the evidence should
have been admitted because it went to the element of Gilliland's intent or lack thereof. In
other words, the evidence supported the defense theory that Gilliland was unconscious at
the time of the incident and it was C.E. who, of her own volition, climbed on top of
Gilliland. He argues that without evidence of C.E.'s prior behavior and tendencies, his
argument that she climbed on top of him was implausible.

In making this argument, Gilliland not only focuses on the ultimate admissibility
of the evidence, he also takes issue with the legal standard used by the trial court in ruling
that the evidence was inadmissible. He essentially contends the trial court determined
relevance based on whether C.E.'s statements were corroborated, instead of simply
considering whether the evidence of C.E.'s previous sexual conduct was relevant.

26

This argument questions the adequacy of the legal basis for the trial court's
decision to exclude the evidence, which is a question an appellate court reviews de novo.
State v. Reid, 286 Kan. 494, 503, 186 P.3d 713 (2008) (quoting State v. Gunby, 282 Kan.
39, 47-48, 144 P.3d 647 [2006]).

The legal basis for determining the admissibility of all evidence is relevance. See
State v. Berriozabal, 291 Kan. 568, Syl. ¶ 7, 243 P.3d 352 (2010); Reid, 286 Kan. at 507-
09. Relevance, in addition to being the focus of general considerations regarding the
admission of evidence, is the key consideration when applying the rape shield statute,
K.S.A. 21-3525, which prohibits the admission of evidence of an aggravated criminal
sodomy victim's "previous sexual conduct with any person including the defendant[,]"
unless the trial court first determines the evidence to be relevant and otherwise
admissible. K.S.A. 21-3525(a)(5), (b).

K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and
material. Berriozabal, 291 Kan. 568, Syl. ¶ 7. In determining whether the evidence is
"material," the analysis focuses on whether the fact to be proved is "'a fact . . . [that] has a
legitimate and effective bearing on the decision of the case and is in dispute.' [Citation
omitted.]" Reid, 286 Kan. at 505. Evidence is probative if it has "'any tendency to prove
any material fact.'" State v. Houston, 289 Kan. 252, 261, 213 P.3d 728 (2009) (quoting
K.S.A. 60-401[b]).

Thus, the question Gilliland raises is whether the trial court applied the correct test
of determining whether C.E.'s prior behavior was material and probative and, therefore,
relevant. The focus of this inquiry is on the following statements by the judge:

"I'm finding it real difficult to understand—to find in this case that the rape shield
should be penetrated. If this were an uncorroborated allegation by the victim herself,
perhaps at least limited evidence with regard to the prior unfounded allegation might be
27

relevant, but I think it's an awfully large jump from testimony of her being [a] clingy, and
not only with men but with women, child [who was] obviously . . . raised in an extremely
dysfunctional household[. It] doesn't seem to be relevant to the issues in this case
where . . . there is direct corroboration of the incident itself and I think it would be unduly
intrusive to the victim and not in violation of any of the defendant's due process rights to
enforce the rape shield in this act [sic]. The Court would, at least in the present context,
deny the defense's motion under 21-3525 and prohibit the introduction of any prior sexual
conduct attributed to the victim."

There is no mention of whether the evidence was material or probative in these
conclusions. And, as Gilliland argues, when the court mentioned relevance it was tied to
corroboration. According to the trial court, if the evidence had been uncorroborated it
would have been relevant and because it was corroborated it was not relevant. Yet,
relevance is not determined by corroboration or the lack thereof. The trial court tied two
unrelated concepts together and, in doing so, failed to apply the correct standard.

Nevertheless, an "appellate court shall disregard all mere technical errors and
irregularities which do not affirmatively appear to have prejudicially affected the
substantial rights of the party complaining, where it appears upon the whole record that
substantial justice has been done by the judgment." K.S.A. 60-2105; see K.S.A. 60-261
("The court at every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties."). To determine if
substantial justice has been done an appellate court must determine whether the error
affected

"the outcome of the trial in light of the entire record. The degree of certainty by which the
court must be persuaded that the error did not affect the outcome will vary depending on
whether the fundamental failure infringes upon a right guaranteed by the United States
Constitution. If it does not, the trial court should apply K.S.A. 60-261 and determine if
there is a reasonable probability that the error will or did affect the outcome of the trial in
light of the entire record. If the fundamental failure does infringe upon a right guaranteed
28

by the United States Constitution, the trial court should apply the constitutional harmless
error analysis defined in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d
705, reh. denied 386 U.S. 987 (1967), in which case the error may be declared harmless
where the party benefitting from the error proves beyond a reasonable doubt that the error
complained of will not or did not affect the outcome of the trial in light of the entire
record, i.e., proves there is no reasonable possibility that the error affected the verdict. . . .
An appellate court reviewing the second step for an injustice will review the entire record
and use the same analysis, applying K.S.A. 60-261 and K.S.A. 60-2105 or else Chapman,
depending on the nature of the right allegedly affected." State v. Ward, 292 Kan. 541,
569-70, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

Gilliland argues the Chapman harmless error standard applies because he was
denied his constitutional right to present a defense. We disagree, even though the State
does not dispute his assertion. The reason we do so is because Gilliland was able to
present his defense. Evidence in support of the defense was presented through the
testimony of Gilliland; Charlotte; Fletcher; Andrew Massey, a physician who evaluated
Gilliland in 2006 regarding his epilepsy; Dr. Logan, as his expert witness; and others.
Gilliland was only limited by the exclusion of some evidence relating to this defense, and
that evidence was excluded based on an evidentiary ruling under the rape shield statute.
"'[T]he right to present a defense is subject to statutory rules and case law interpretation
of the rules of evidence and procedure.' [Citation omitted.]" Houston, 289 Kan. at 261.
And, when the issue relates to the application of a rule of evidence or procedure and not
to a complete denial of a defense, we conclude the harmless error standard of K.S.A. 60-
2105 and K.S.A. 60-261 applies, rather than the Chapman constitutional standard.

Under the harmless error standard of K.S.A. 60-2105 and K.S.A. 60-261, we must
determine if there is a reasonable probability that the error affected the outcome of the
trial in light of the entire record. Ward, 292 Kan. at 569-70; see State v. McCullough, 293
Kan. 970, 981-82, 270 P.3d 1142 (2012). The State, as the party seeking the exclusion of
29

the evidence and therefore as the party presumably benefitting from the error, has the
burden of persuading us that the error was harmless. McCullough, 293 Kan. at 983.

In applying this standard, we are first faced with the question of whether the
evidence would have been admissible if the trial court had applied the correct standard.
As an appellate court we are hampered in this assessment because our typical role is to
determine if the trial court abused its discretion in determining whether evidence is
probative. Reid, 286 Kan. at 509. Without any findings of fact or conclusions of law to
review, we would have to make a de novo review of probativeness, which is outside the
role of an appellate court. Rather than step outside our role, we will assume, without
determining probativeness, that the evidence was admissible and assess whether there is a
reasonable probability that the outcome of the trial would have been different if the
evidence had been admitted.

In making this determination, it is important to place the evidence in its legal
context. Legally, the evidence has little bearing. Even if C.E. had climbed on Gilliland
and begged for the sexual contact, her consent—as a child younger that 14—has no legal
bearing on guilt. Gilliland had to establish that he was unconscious and presumably
incapable of participating in the charged offense; in other words, he was incapable of
having oral contact with C.E.'s female genitalia. See K.S.A. 21-3501(2) (defining
sodomy); K.S.A. 21-3506 (aggravated sodomy). In other words, the jury would have had
to believe that C.E. chose to sit on an unconscious person's mouth—Charlotte admitted at
trial that she saw Gilliland's mouth "line[d] up [with C.E.'s genitalia], but I mean, I can't
say anything was moving or anything like that." Further, the jury would have had to
conclude Gilliland did not react in anyway and that it took Charlotte pulling on his hair to
bring him to consciousness.

Gilliland argues the evidence of C.E.'s past behaviors would have made all of
these conclusions more plausible because the jury would have believed C.E. climbed on
30

his face of her own volition. Gilliland's argument ignores his confession to Fontanez that
he was having "[o]ral sex" with a 12 year old. This contemporaneous admission and
showing of awareness regarding what had occurred causes us to conclude it is more likely
than not a jury would have found Gilliland's defense implausible even if the evidence of
C.E.'s prior behaviors had been introduced. This is especially true in light of other
evidence in the record. In particular, Charlotte made contemporaneous statements to
Fletcher, which Fletcher repeated to Fontanez, telling him that Charlotte had said
Gilliland had "oral sex" with C.E.

In making these contemporaneous reports of the crime, Charlotte and Fletcher did
not report to any law enforcement officer that they were concerned that Gilliland had
suffered a seizure or that he seemed unaware of what was going on. And the officers did
not observe any behavior that made them draw this conclusion. Gilliland never made
such a suggestion to the interviewing officers. And, although C.E. had previously
observed Gilliland during a seizure, when asked if it looked to her like Gilliland was
having a seizure on the day of the incident, she replied, "No." When asked if he was
sleeping, C.E. replied, "No." C.E.'s statements, at least in all major respects, remained
consistent throughout the interview and various court proceedings. Although she was
never very forthcoming with details, at trial she testified clearly to feeling Gilliland's
tongue, not just his mouth, on her genitals.

In light of the record as a whole, the exclusion of the evidence regarding C.E.'s
past behavior was harmless. Even if the jury had heard the evidence and had believed
C.E. was so troubled she would have invited the contact, there is not a reasonable
probability the outcome of the trial would have been different.




31

ISSUE 4: PRETRIAL TAINT HEARING REGARDING C.E.'S STATEMENTS

Next, Gilliland argues the trial court erred in denying his motion to hold a pretrial
taint hearing to determine the reliability of C.E.'s trial testimony and statements to law
enforcement officers due to allegedly suggestive interviewing techniques. This issue
requires some explanation of what occurred before trial.

Gilliland filed a motion to exclude the testimony of C.E. from the trial and to
suppress her statements to officers. Gilliland questioned C.E.'s competency and argued
that many of the interviewing techniques used by investigators were "prone to produce
misleading and unreliable information" from C.E. In support of his motion, Gilliland
stated that the officers' decisions to provide C.E. with a description of her mother's
observations of the incident, together with the "leading and suggestive interrogation"
techniques, C.E.'s mental "limitations," and the officers' "questioning of negative or
exculpatory responses and reinforcement of inculpatory responses," rendered C.E.'s
statements involuntary, tainted, and unreliable.

At the pretrial motions hearing, the trial court heard extensive testimony pertaining
to C.E.'s previous sexual conduct and her competency. In regard to C.E.'s statements, the
court heard the testimony of the two interviewing officers and C.E. In addition, the court
listened to the audio recording of C.E.'s interview.

Despite this evidentiary hearing, Gilliland insisted the trial court should conduct a
separate, designated pretrial taint hearing on whether C.E.'s statements to officers were
unreliable and, therefore, inadmissible due to the officers' interviewing techniques.
Gilliland indicated he would present the testimony of Dr. Kathie Nichols, a licensed
clinical psychologist, on the issue of taint due to police interviewing techniques,
including her criticism of the "Finding Words" protocol used by the officers in this case.
The judge refused, stating:
32


"[I]f you're asking me to rule on the interview techniques, I didn't hear anything
inappropriate from the officers yesterday or listening to the tape. The Finding Words is a
tool, it's not carved in stone, it's not a formula, it's just something—it's just . . . training
for the interviewers but I mean there's no statutory requirement or due process
requirement that they have to follow Finding Words to the letter. I mean you yourself
introduced or referred to a notebook about six inches thick and I'm quite sure that every
word in that notebook is not followed in every interview by every interviewer. Every
interview is different, every person is different and I didn't find anything unduly
suggestive or unduly leading. In fact the victim witness was quite ready to disagree with
the . . . interviewers.
. . . .
"[I]f there's some question as to the victim's ability to communicate and that sort
of thing, that can be raised by appropriate cross-examining of the defense at the trial, but
the victim is competent to testify, she clearly and consistently testified and is able to
communicate to the jury . . . .
. . . .
". . . If the witness' testimony is subject to cross-examination, subject to
questioning, that's the purpose of a trial, not of some pretrial hearing."

Gilliland argues the trial court's limitations—refusing to hear the testimony of Dr.
Nichols and refusing to otherwise hold a pretrial taint hearing on the alleged suggestive
nature of the officers' interviewing techniques—violated his due process rights.

Although we generally review motions to suppress under a bifurcated standard of
review, reviewing the factual underpinnings of the trial court's decision under a
substantial competent evidence standard and reviewing the ultimate legal conclusion
drawn from those facts under a de novo review, the underlying due process question here
is solely one of law that we review de novo. See State v. Stone, 291 Kan. 13, 21, 237 P.3d
1229 (2010); State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008).

33

This issue appears to be one of first impression in that Kansas does not formally
recognize pretrial taint hearings. One state—New Jersey—does, and Gilliland relies on
the New Jersey case adopting the procedure, State v. Michaels, 136 N.J. 299, 642 A.2d
1372 (1994), to support his contention. Gilliland also cited this case to the trial court,
which refused to adopt it because it was not binding precedent in Kansas.

In Michaels, the New Jersey Supreme Court held that the trial court should have
held a pretrial taint hearing concerning the admission of the child victims' statements and
testimony after the defendant showed "'some evidence'" that the victims' statements were
the result of suggestive or coercive interviewing techniques. Michaels, 136 N.J. at 320. In
such circumstances, the burden then shifts to the State to prove the reliability of the
proffered statements and testimony by clear and convincing evidence. Michaels, 136 N.J.
at 321. If the trial court determines that a child's statements or testimony do retain
sufficient reliability for admission at trial under factors the court defined, then the jury
must determine the probative worth and assign the weight to be given to such statements
or testimony as part of their credibility assessment. Michaels, 136 N.J. at 323.

The Michaels court acknowledged that "assessing reliability as a predicate to the
admission of in-court testimony is a somewhat extraordinary step." Michaels, 136 N.J. at
316. But it likened this situation to those involving the pretrial determination of the
admissibility of eyewitness identification testimony, see Manson v. Brathwaite, 432 U.S.
98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), or those involving the pretrial
determination of the voluntariness and admissibility of a defendant's statements to
officers, see Jackson v. Denno, 378 U.S. 368, 377-78, 84 S. Ct. 1774, 12 L. Ed. 2d 908
(1964). The Michaels court stressed that the effects of suggestive pretrial identification
procedures, as with suggestive or coercive interview practices, are "exceedingly difficult
to overcome at trial." Michaels, 136 N.J. at 319. "Competent and reliable evidence
remains at the foundation of a fair trial, which seeks ultimately to determine the truth
about criminal culpability. If crucial inculpatory evidence is alleged to have been derived
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from unreliable sources due process interests are at risk. [Citation omitted.]" Michaels,
136 N.J. at 316.

The judge in the present case, while rejecting the request for a separate hearing,
made the ultimate finding mandated by the holding in Michaels, stating, "I didn't find
anything unduly suggestive or unduly leading. In fact the victim witness was quite ready
to disagree with the . . . interviewers." Because the court made this finding, we decline to
issue an advisory opinion on the question of whether a trial court must take on a gate-
keeping role and determine reliability before allowing a child's statement to be presented
to a jury, and our discussion of the issue should not be read to imply that outcome. (We
note this question is controversial; a majority of jurisdictions have rejected the holding in
Michaels. See, e.g., State v. Karelas, 28 So. 3d 913, 915 [Fla. Dist. App. 2010] ["Like the
majority of jurisdictions that have considered Michaels, we reject its conclusion."]).
Rather, the limited question that we will resolve is whether the trial court erred by not
conducting a separate hearing and by not allowing Gilliland to present an expert's
testimony before ruling C.E.'s interview was not unduly suggestive.

Regarding the need for a separate hearing, we conclude the trial court did not err
in determining the issue in the context of the competency hearing, especially after the
court had heard evidence regarding C.E.'s statements and had an opportunity to view a
video recording of the statements. Few, if any, jurisdictions other than New Jersey have
strictly imposed a procedural requirement for a separate taint hearing. In fact, some
courts have rejected the idea of a separate pretrial taint hearing even though they have
followed the Michaels lead and found the idea of taint relevant in a pretrial assessment of
the admissibility of the proffered testimony of a child witness. These courts have
permitted an inquiry into suggestiveness through the use of competency hearings, as was
done here. See Com. v. Delbridge, 578 Pa. 641, 664, 855 A.2d 27 (2003) ("[A]
competency hearing is the appropriate venue to explore allegations of taint.");
Dependency of A.E.P., 135 Wash. 2d 208, 230, 956 P.2d 297 (1998) ("We decline to
35

adopt a pretrial taint hearing as a requirement for the reason that the existing state of the
law adequately addresses Petitioner's concerns. As to the reliability of a child's testimony,
a defendant can argue memory taint at the time of the child's competency hearing.");
English v. State, 982 P.2d 139, 146 (Wyo. 1999) ("While we agree with the reasoning of
the New Jersey Supreme Court, we conclude that there is no void in Wyoming law which
a 'taint hearing' procedure would fill.").

The main reason Gilliland argues for a taint proceeding is to separate the
competency finding from a reliability finding. Granted, in this case, the trial court moved
between the two concepts and ultimately based the ruling on competency. But the court
explicitly found the interview was not unduly suggestive or unduly leading. The court
also noted that C.E. pushed back when she disagreed with the interviewer. Further,
Kansas law grants the necessary discretion to consider whether a witness is incapable of
telling the truth because of outside influences, such as a suggestive interrogation. See
K.S.A. 60-408 (granting trial court discretion in conducting proceedings to determine if
witness is qualified); see also K.S.A. 60-417 (witness is disqualified "if the judge finds
that [a] the proposed witness is incapable of expressing himself or herself concerning the
matter so as to be understood by the judge and jury either directly or through
interpretation by one who can understand him or her, or [b] the proposed witness is
incapable of understanding the duty of a witness to tell the truth").

The other reason Gilliland seeks a separate hearing is intertwined with his attempt
to present his expert's testimony. He does not present any authority suggesting that a trial
court would not have discretion during a Michaels hearing to determine whether specific
witnesses would be allowed to testify. Moreover, Gilliland does not establish any harm.
The court's comments indicate a familiarity with the Finding Words protocol, and a
notebook of information was admitted. The court invited the defense to present evidence
at trial. Gilliland decided not to and did not to make a proffer so that an appellate court
could determine the evidence that might have been submitted. Without this proffer, we
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cannot assess whether the expert's testimony probably would have changed the trial
court's ruling.

In light of the record before us, we conclude the trial court did not err in denying
the motion for a separate taint hearing or in denying the defense's request to present Dr.
Nichols' testimony during the competency hearing. Gilliland's due process argument fails.

ISSUE 5: ALLEN-TYPE JURY INSTRUCTION

Next, Gilliland argues that the trial court committed reversible error when it gave a
"deadlocked jury" instruction, or Allen-type charge, before deliberations began,
indicating that "[a]nother trial would be a burden on both sides." See Allen v. United
States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Gilliland admits he did not
object to the instruction and that the clearly erroneous standard of review applies as a
result. See K.S.A. 22-3414(3). Nevertheless, he argues the trial court clearly erred in
giving the instruction in light of our disapproval of this language in State v. Salts, 288
Kan. 263, 265-66, 200 P.3d 464 (2009), which was decided 1 month after the trial in this
case.

Subsequent to Salts, this court has consistently confirmed its holding, which
means that the instruction in this case was erroneous. Yet, in numerous cases applying
this holding, we have concluded giving the instruction with the challenged language was
not clear error. See, e.g., State v. Burnett, 293 Kan. 840, 855, 270 P.3d 1115 (2012); State
v. Washington, 293 Kan. 732, 740-42, 268 P.3d 475 (2012) (listing cases). Instructions
are clearly erroneous only if the reviewing court is firmly convinced there is a real
possibility the jury would have rendered a different verdict if the trial error had not
occurred. Salts, 288 Kan. at 265-66.

37

In attempting to distinguish the long list of post-Salts cases, Gilliland argues the
jury in his case could have been misled because the evidence against him was not
overwhelming. Specifically, he points to testimony about his seizure disorder and the
increased frequency of those seizures during alcohol use and testimony by Charlotte
indicating that Gilliland appeared to be "out" when she walked in on the incident in the
living room.

This argument does not address how the misleading nature of the instruction might
have made a difference in the jury's deliberations; nothing in the record demonstrates the
jury was near deadlock, deadlocked, pressured to reach a verdict, or concerned about the
implications of another trial. Moreover, as we discussed in determining the harmlessness
of the error to exclude evidence of C.E.'s prior sexual behavior, there was substantial
evidence of guilt presented to the jury. Under these circumstances, we conclude there is
no real possibility that the jury would have rendered a different verdict if the offending
wording had been omitted from the jury instructions.

ISSUE 6: CUMULATIVE ERRORS

Next, Gilliland unpersuasively argues that even if one of the trial court's errors
alone does not require reversal, then the cumulative effect of the errors denied him a fair
trial, requiring reversal.

"In a cumulative error analysis, an appellate court aggregates all errors and, even
though those errors would individually be considered harmless, analyzes whether their
cumulative effect on the outcome of the trial is such that collectively they cannot be
determined to be harmless. [Citation omitted.] In other words, was the defendant's right
to a fair trial violated because the combined errors affected the outcome of the trial?"
State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).

38

Where, as here, the errors found by this court are not constitutional in
nature, we examine whether there is a reasonable probability the aggregated errors
would have affected the outcome of the trial. Ward, 292 Kan. at 569-70. In making
the assessment of whether the cumulative errors are harmless, an appellate court
examines the errors in the context of the record as a whole considering how the
trial court dealt with the errors as they arose (including the efficacy, or lack of
efficacy, of any remedial efforts); the nature and number of errors committed and
their interrelationship, if any; and the strength of the evidence. See Tully, 293 Kan.
at 205-06; Ward, 292 Kan. at 569-70.

In this appeal, we have found two errors: (1) The trial court applied the wrong
standard in determining if evidence within the ambit of the rape shield statute was
inadmissible and (2) the trial court erred in giving an erroneously worded Allen-type jury
instruction. These errors were unrelated and unlikely to have impacted one another. See
State v. Martinez, 290 Kan. 992, 1017, 236 P.3d 481 (2010) (two trial errors were
harmless, unrelated, and were not, in combination, so prejudicial as to deny the defendant
a fair trial). And, as we have already stated, we find nothing in the record to suggest the
Allen-type instructional error had any impact. Even factoring in the potential of some
impact, we do not believe that potential changes the harmless error analysis we conducted
as part of our discussion of the error regarding the rape shield statute.

Consequently, we conclude the cumulative errors were harmless and did not have
an effect on the jury's verdict.

ISSUE 7: DEPARTURE SENTENCE

Gilliland also attacks his sentence on several grounds, including an argument that
the sentencing court erred in denying his motion for departure. The record regarding
whether the court departed and the reasons for the departure are very confusing. The
39

sentencing court stated it was denying the motion to depart, and both parties take that
position in their appellate briefs. But the court did not impose the statutorily defined
sentence. Rather, the court departed from the life sentence to be imposed under Jessica's
Law, K.S.A. 21-4643, and imposed a sentence under the Kansas Sentencing Guidelines
Act (KSGA), K.S.A. 21-4701 et seq., of 586-months' incarceration.

As we held in State v. Jolly, 291 Kan. 842, 846-47, 249 P.3d (2011), a sentencing
court departs from Jessica's Law if it does not impose a life sentence. If a different
sentence is imposed, the sentencing court must state the substantial and compelling
reasons for departure and must depart to the applicable KSGA grid box. Once the
sentence becomes a guidelines sentence, the court is free to depart from the sentencing
grid. However, departure findings must justify both steps. "[T]he requirements of neither
the first step into the guidelines nor the second step away from the presumptive
guidelines sentence can be ignored, and all departure procedures must be followed.
[Citation omitted.]" Jolly, 291 Kan. at 847. Those requirements and procedures were not
followed here.

In the appellate briefs filed in this case, neither party mentioned the departure from
the life sentence. At the oral argument, when members of the court asked for help in
understanding the record, the State suggested the sentencing court had meant that
Gilliland had a life sentence but must serve 586 months of his sentence before he would
be eligible for parole. See K.S.A. 21-4643(a)(2)(B) (minimum mandatory sentence under
Jessica's Law is 25 years unless the defendant's guidelines sentence would be longer than
25 years, in which case the minimum sentence is equal to the guidelines sentence). But
the court's statements and the journal entry are not consistent with this suggestion.

This leaves us in an unusual situation. The State did not object to the sentencing
court's procedure and did not cross-appeal and argue there was a departure without
accompanied findings. Yet, we cannot sensibly talk about Gilliland's contention that the
40

sentencing court erred when it failed to grant a departure motion when, in effect, it
appears the court departed. We conclude under these unusual circumstances―where the
sentence is ambiguous because it is contrary to the law and to the explicit finding of the
sentencing court―we must vacate the illegal sentence and remand for resentencing. See
State v. Anthony, 273 Kan. 726, 730, 45 P.3d 852 (2002) (finding appellate court has
authority pursuant to K.S.A. 22-3504 to sua sponte correct an illegal sentence and
remand for imposition of corrected sentence).

ISSUES 8 TO 10: OTHER SENTENCING ISSUES

In addition, Gilliland argues his sentence is cruel and unusual punishment, a no-
contact order was illegal, and his constitutional right to trial was violated by the reliance
on his prior criminal history at sentencing without a jury finding. Because we have
ordered a remand for resentencing and the basis for these claims of error may not apply
under the new sentence, we do not address these questions as they are no longer ripe.

In conclusion, we affirm Gilliland's aggravated criminal sodomy conviction,
vacate his sentence, and remand for resentencing.

Conviction affirmed, sentence vacated, and case remanded with directions.