IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 93,643
STATE OF KANSAS,
Appellee,
v.
TIARA JONES,
Appellant.
SYLLABUS BY THE COURT
1. In reviewing a trial court's denial of a motion to suppress statements, an appellate court determines, without reweighing the evidence, whether the facts underlying the trial court's decision were supported by substantial competent evidence. The trial court's legal conclusion drawn from those facts is reviewed de novo.
2. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him or her in custody.
3. The question of whether an interrogation is custodial must be determined based on an objective standard of how a reasonable person in the suspect's situation would perceive his or her circumstances. Courts must examine all of the circumstances surrounding the interrogation and determine how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action.
4. Two discrete inquiries are essential to the determination of whether an interrogation is custodial. First, what were the circumstances surrounding the interrogation? On appeal, the standard of review for this prong of the inquiry is whether there is substantial competent evidence to support the trial court's findings. Second, under the totality of those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. On appeal, this determination is reviewed de novo.
5. Several factors bear on whether Miranda warnings delivered after an initial, unwarned statement can be effective and whether any subsequent statements can be viewed as voluntary, including: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions indicate the second round was continuous with the first. If a reasonable person could see the post-Miranda questioning as a new and distinct experience from the earlier, unwarned questioning, the Miranda warnings can be effective in presenting a suspect a genuine choice of whether to follow up on the earlier statement.
6. A trial court's decision of whether to substitute one juror with an alternate is reviewed for abuse of discretion. The defendant has the burden of showing substantial prejudice before an appellate court will find an abuse of discretion by the trial court.
7. A defendant bears the burden of proving actual juror bias, and no presumption of prejudice arises merely from the fact that an improper contact with a juror occurred.
8. Even when it is appropriate to give a voluntary intoxication instruction in a prosecution for first-degree premeditated murder or second-degree intentional murder, evidence of voluntary intoxication alone does not justify an instruction on unintentional but reckless second-degree murder. Intoxication can eliminate intent to kill so that the killing is unintentional under the law, but it may not supply the extreme recklessness element of unintentional second-degree murder.
9. Kansas' hard 50 sentencing scheme is constitutional.
10. When a defendant challenges the sufficiency of evidence for establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.
11. Kansas' hard 50 statutes do not require the sentencing court to make any findings on the record regarding the mitigating factors relied upon by a defendant although it would be a better practice for the court to make these findings.
12. Without error, there can be no cumulative error.
Appeal from Wyandotte district court; THOMAS L. BOEDING, judge. Affirmed. Opinion filed February 9, 2007.
Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Constance M. Alvey, assistant district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
The opinion was delivered by
LUCKERT, J.: Defendant Tiara Jones was convicted of one count of first-degree premeditated murder and one count of second-degree intentional murder. Jones now appeals, attacking his convictions because the trial court refused to: (1) suppress his inculpatory statements to law enforcement officers, (2) excuse a juror who reported contact with the defendant's family during the trial, and (3) instruct on reckless second-degree murder. Jones also attacks his controlling hard 50 life sentence, arguing the hard 50 sentencing provisions are unconstitutional and the trial court erred in imposing the sentence. We reject his arguments and affirm his convictions and sentence.
Facts
On August 22, 2002, police found roommates Stephanie Childs and James Brown dead inside Childs' apartment. Brown was lying on a bed, and his wrists and ankles were tied behind his back with an electrical cord. Both Childs and Brown had been shot in the head. Although Jones was interviewed during the initial investigation, he was not initially a prime suspect. In fact, the State prosecuted a former roommate of Childs, Dion Walker, for the murders. Walker's case proceeded to trial in April 2003 with Walker maintaining his innocence.
A few days after Walker's trial began, a biology technician at the Kansas Bureau of Investigation notified Kansas City, Kansas, Detective Greg Lawson that the DNA evidence on the electrical cord used to tie up Brown matched Jones' DNA. The detective notified Walker's defense counsel of the new evidence. Later that day, Walker's defense counsel told Detective Lawson that he would be meeting with Jones to discuss Jones' upcoming testimony in Walker's trial. At that time, the detective planned to conduct a follow-up interview.
According to testimony at the suppression hearing, the district attorney's office sent two investigators to Jones' mother's house, where they found Jones. Investigator Garrett testified that he showed Jones' mother his badge and that they explained the need to take Jones down to the courthouse to go over his statement. The investigators told Jones he could drive himself and follow them to the courthouse or, if he did not have a vehicle, they would provide the transportation. Jones rode with them to the district attorney's office.
Upon his arrival at the district attorney's office, Jones waited for a period of time in the reception area and was then led to the conference room where Detectives Lawson and William Lee Howard, Jr., explained that they wanted to "go over [Jones'] statement that he had provided earlier, the taped statement, and make sure that everything was still the same as it was at the time [the officers] had talked to him originally." The detectives told Jones that this meeting was voluntary, and they went over his initial statement line by line. Jones was not Mirandized at this point. The detectives eventually informed Jones that his DNA was discovered on the electrical cord, and they needed to know if there was a logical explanation for its presence. Detective Lawson began asking Jones what items he might have used in the house or what areas he might have visited, knowing that Jones had professed to having had a sexual relationship with Childs. The detectives knew that the cord came off a bathtub spa in the bathroom, but they did not reveal that detail to Jones.
Jones had no explanation for the presence of his DNA on the electrical cord. According to Lawson, he told Jones that, if there was something they needed to talk about, "this would be the time to do it before you testify" and "if you're involved or whatever, we need to talk about this." Jones then told the officers that he tied Brown up but did not shoot him. Detective Lawson testified that he stopped the interview, advised Jones that they were now talking to him as a suspect, told Jones he did not have to talk any further, and verbally advised Jones of his Miranda rights. Jones indicated that he wanted to talk and was adamant that he did not shoot Brown. Shortly thereafter, within approximately 30 minutes, Jones was placed in handcuffs and taken across the street to the police department.
Before being interrogated at the police department, Jones waived his Miranda rights by signing the waiver form. This statement was videotaped. Detective Lawson testified that the officers believed, based on the evidence, that there had been two perpetrators; thus, they wanted to know who was present with Jones at the crime scene. At the police department, Jones looked at some photographs and initially identified the shooter as a man who police knew had been killed some months prior to the incident involving the murders of Childs and Brown. When confronted with this fact, Jones gave another name as his accomplice.
After investigating this lead, the detectives determined this, too, was a false lead and, in fact, was a false name. Upon making this determination, officers brought Jones into the police department for a second videotaped interview. After again Mirandizing Jones, the officers confronted him with the results of their investigation. Eventually, Jones named Marcus Kyea as his accomplice. Kyea corroborated Jones' statement that Jones and Kyea were the two perpetrators involved in the murders. According to Kyea, Jones was the shooter. Kyea took officers to the location where the murder weapon was hidden. Officers found the gun in a heavily wooded area near Kyea's residence.
The case against Walker was subsequently dismissed and charges were brought against Jones. At trial, Kyea testified that Jones was having trouble with someone breaking into his apartment and asked Kyea to get him a gun. Kyea obtained a pump-action, "sawed-off" shotgun. On the night of the incident, Jones and Kyea drove around, drinking beer and smoking marijuana. They returned briefly to Jones' apartment and then walked down the street to Childs' apartment. Jones knocked on the door, and Childs let the two men into her apartment, where Brown was sitting on the couch. According to Kyea, Childs and Jones began arguing when Childs denied knowing anything about the burglary of Jones' apartment. Then, Childs said that Walker was involved.
Kyea testified that he gave the gun to Jones and called Walker on the telephone. Walker denied knowing anything about the burglary and hung up the phone. Jones also tried to call Walker, but Walker repeatedly hung up on him. This angered Jones, who threw and broke the phone. Jones then told everybody to go upstairs. Jones went into one bedroom with Childs, and Kyea went into another bedroom with Brown. About 5 to 10 minutes later, Jones came out with Childs and took Brown into one of the bedrooms. Kyea went into the bathroom with Childs and stood in the doorway while Childs sat crying in the bathtub. Kyea testified that he then heard the "pop" of a gunshot. Brown, "hog-tied" and lying on the bed, had been bound with an electrical cord and shot in the back of the head. He did not survive.
Upon hearing the gunshot, Kyea walked into the bedroom and Childs followed. Seeing Brown lying on the bed, Childs screamed and ran downstairs. Kyea testified that he and Jones followed, and Jones and Childs wrestled near the couch. Kyea saw Childs trying to block the gun with her hands as Kyea walked out the front door. Then, Kyea heard another gunshot. Childs received a fatal gunshot wound to her head. Jones proceeded to leave Childs' apartment, and the two men escaped the scene.
Jones was convicted of the first-degree premeditated murder of Childs and the second-degree intentional murder of Brown. With respect to the first-degree murder conviction, the sentencing court found aggravating circumstances justifying the imposition of a hard 50 life sentence existed, in that more than one person was killed and the crime was particularly heinous or atrocious. In addition to the hard 50 life sentence, Jones received a sentence of 195 months for the second-degree murder conviction, to be served concurrent with the life sentence.
1. Motion to Suppress
First, Jones argues that the trial court erred in denying his motion to suppress the statements he made to law enforcement officers in the conference room of the Wyandotte County District Attorney's office and all subsequent statements. Jones contends Detectives Lawson and Howard were conducting a custodial interrogation and did not give him Miranda warnings. In denying Jones' motion to suppress, the trial court ruled that the detectives' questioning at the district attorney's office did not constitute a custodial interrogation.
During trial, Jones contemporaneously objected to the admission of the statements. Therefore, the issue is properly preserved for appeal. See State v. Holmes, 278 Kan. 603, 610, 102 P.3d 406 (2004).
Standard of Review
In reviewing the trial court's denial of the defendant's motion to suppress statements, this court determines, without reweighing the evidence, whether the facts underlying the trial court's decision were supported by substantial competent evidence. The trial court's legal conclusion drawn from those facts is reviewed de novo. State v. Rupnick, 280 Kan. 720, 727, 740, 125 P.3d 541 (2005). The same standard applies to the subset of these cases dealing with the question of whether a person is in custody at the time of an interrogation. State v. James, 276 Kan. 737, 751, 79 P.3d 169 (2003).
Substantial evidence is "evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]" State v. Luna, 271 Kan. 573, 574-75, 24 P.3d 125 (2001).
Custodial or Investigatory
The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent. "[T]o reduce the risk of a coerced confession and to implement the Self-Incrimination Clause" (Chavez v. Martinez, 538 U.S. 760, 790, 155 L. Ed. 2d 984, 123 S. Ct. 1994 [2003] [Kennedy, J., concurring in part and dissenting in part]), the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 479, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), concluded that States may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the defendant's privilege against self-incrimination. However, police are not required to administer Miranda warnings to everyone whom they question. Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977). Rather, "Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.'" Mathiason, 429 U.S. at 495.
The United States Supreme Court has determined that the question of whether the interrogation is custodial must be determined based on an objective standard of how a reasonable person in the suspect's situation would perceive his or her circumstances. The use of the objective standard was clarified in Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984), which arose when a police officer stopped and questioned a suspected drunk driver and asked him some questions. The officer reached the decision to arrest the driver at the beginning of the traffic stop; he did not, however, indicate this to the driver and did not make the arrest until the driver failed a sobriety test and acknowledged that he had been drinking beer and smoking marijuana. The Court held the traffic stop noncustodial despite the officer's intent to arrest because he had not communicated that intent to the driver. "A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time," the Court explained. 468 U.S. at 442. "[T]he only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." 468 U.S. at 442.
This analytical framework was confirmed in Stansbury v. California, 511 U.S. 318, 128 L. Ed. 2d 293, 114 S. Ct. 1526 (1994), when the Court explained that "the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." 511 U.S. at 323. Courts must examine "all of the circumstances surrounding the interrogation," 511 U.S. at 322, and determine "how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her 'freedom of action.'" 511 U.S. at 325 (quoting Berkemer, 468 U.S. at 440).
In Thompson v. Keohane, 516 U.S. 99, 133 L. Ed. 2d 383, 116 S. Ct. 457 (1995), the Court summarized the custody test:
"Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve 'the ultimate inquiry': '[was] there a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.' [Citation omitted]." 516 U.S. at 112 (quoting California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 [1983]).
A similar analysis has been applied under Section 10 of the Kansas Constitution Bill of Rights, which provides the same guarantees as the Fifth Amendment. State v. Ninci, 262 Kan. 21, 34, 936 P.2d 1364 (1997). Kansas courts have long recognized the distinction between custodial and investigatory interrogation. State v. Taylor, 234 Kan. 401, 405, 673 P.2d 1140 (1983). Custodial interrogation has been described as the questioning (or its functional equivalent) of persons by law enforcement officers, initiated and conducted while such persons are held in legal custody or are otherwise deprived of their freedom of action in any significant way. Investigatory interrogation is the questioning of persons by law enforcement officers in a routine manner in an investigation and where such persons are not in legal custody or deprived of their freedom of action in any significant way. State v. Price, 233 Kan. 706, 712, 664 P.2d 869 (1983); see State v. Jacques, 270 Kan. 173, 185-86, 14 P.3d 409 (2000).
Although this court has not been as explicit in stating that there are two discrete inquiries essential to the determination of whether an interrogation is custodial as was the United States Supreme Court in Thompson, Kansas courts have used the same framework. Thus, our first inquiry is: what were the circumstances surrounding the interrogation? Our standard of review for this prong on the inquiry is whether there is substantial competent evidence to support the trial court's findings regarding the circumstances. The second inquiry is: under the totality of those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave? We review this determination de novo. See James, 276 Kan. at 749-50.
In State v. Deal, 271 Kan. 483, 495, 23 P.3d 840 (2001), abrogated on other grounds by State v. Anthony, 282 Kan. 201, 214, 145 P.3d 1 (2006), this court set out the following factors to be considered in analyzing the circumstances of the interrogation:
"(1) when and where the interrogation occurred; (2) how long it lasted; (3) how many police officers were present; (4) what the officers and the defendant said and did; (5) the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door; (6) whether the defendant is being questioned as a suspect or a witness; (7) how the defendant got to the place of questioning, that is, whether he came completely on his own in response to a police request or was escorted by police officers; and (8) what happened after the interrogation-whether the defendant left freely, was detained, or was arrested. The importance of each factor varies from case to case. [Citation omitted.]" 271 Kan. at 497.
See State v. Fritschen, 247 Kan. 592, 603, 802 P.2d 558 (1990).
This court has never slavishly adhered to these factors in analyzing the issue of whether a particular interrogation is custodial. In fact, it has been stated that these are not "hard and fast factors." Rather, "[e]ach case needs to be analyzed on its own facts. Factors present in one case will not be present in another. Further, listing factors, 'one two three four five,' implies that each factor bears equal weight. However, in differing cases, the importance of each factor varies." Fritschen, 247 Kan. at 603. This said, these factors and any others relevant under the circumstances of the case aid in the consideration of the first step of analysis, i.e., determining the circumstances of the interrogation.
In this case, Jones does not contend that the trial court made erroneous findings of fact, that substantial competent evidence does not support the findings regarding the circumstances, or that the findings of fact were insufficient. In fact, the facts stated above are not disputed. Rather, the defendant disputes the conclusion implied by the trial court's finding that the interrogation was not custodial, i.e., that a reasonable person under those circumstances would have felt at liberty to terminate the interrogation and leave.
In support of his position that a reasonable person would have felt restrained, Jones relies heavily on the fact he was under subpoena to testify. In support, Jones cites State v. Cathey, 241 Kan. 715, 741 P.2d 738 (1987), disapproved on other grounds State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). In Cathey, this court determined that Miranda warnings were not required to admit statements given by a witness at an inquisition pursuant to K.S.A. 22-3101, where the witness' presence was compelled under the subpoena power. 241 Kan. at 721-22. The Cathey court noted that statutory safeguards provided by K.S.A. 22-3104 (right to counsel and right not to make incriminating statement) were adequate to protect an inquisition witness' constitutional rights. Jones argues that such statutory safeguards are similar to Miranda warnings, which were not given to Jones before the officers spoke to him in the district attorney's conference room. Jones' reliance on Cathey is not persuasive, however, because the present case in no way deals with inquisitions or the rights of inquisition witnesses.
Despite this, there is some merit to Jones' contention that someone under subpoena might feel his or her liberty was restrained. Although from a technical standpoint a witness would have no obligation to participate in witness preparation because of being under subpoena to testify, it is understandable that a reasonable person who was not familiar with subpoenas might not understand this distinction. This perception could also be influenced by the fact that the two investigators in the district attorney's office who drove Jones to the interview handed him over to police detectives for the interview. A final factor weighing in favor of concluding that a reasonable person would feel restrained is the fact that Jones was arrested immediately after the interview.
However, these factors must be considered in light of the totality of the circumstances, including those factors that do not suggest the interview was custodial. In this case, there are several. James, 276 Kan. at 751. First, regarding the subpoena, there is no evidence the officers used the subpoena as a threat or mentioned it to imply Jones must go to the district attorney's office. In fact, Detective Lawson testified at the suppression hearing that he had no knowledge the subpoena had been served on Jones. Furthermore, there was no actual restraint.
Significantly, the detectives told Jones that the interview was voluntary, and Jones told the detectives that he came to the district attorney's office voluntarily. The detectives never told Jones he was a suspect, that he was in custody, or that he was under arrest until after Jones volunteered incriminating information. In fact, the circumstances of a trial being under way against another suspect would have caused a reasonable person to believe they would be allowed to leave and were being interviewed only to prepare to testify.
Jones was merely a witness at that point. The officers went over Jones' entire initial statement with Jones and then, recognizing there could be a plausible explanation for Jones' DNA being present on the electrical cord, told Jones about the discovery of his DNA on the cord. Having given no explanation for the presence of his DNA on this item, Detective Lawson told Jones that, if there was something they needed to talk about, "this would be the time to do it" before Jones testified in Walker's case. Again, the focus at that point was upon preparation for trial and the potential cross-examination by the defense regarding the DNA.
Jones asserts that, once the detectives learned that Jones' DNA was found on the electrical cord, he became a "suspect" instead of a "witness," regardless of the fact that there might have been some plausible explanation for the presence of his DNA on the cord. In his appellate brief, Jones states: "It is difficult to believe that the officers, knowing that Mr. Jones' DNA was found on the cord and having excluded any legitimate explanation for its presence, would have let Mr. Jones walk out the door."
However, being a suspect does not make an interrogation custodial. This conclusion was reached in Beckwith v. United States, 425 U.S. 341, 48 L. Ed. 2d 1, 96 S. Ct. 1612 (1976), wherein the Court concluded that the failure to give Miranda warnings did not render inadmissible statements made by the defendant to Internal Revenue Service agents during a noncustodial interview. The petitioner argued he should have been advised of his rights under Miranda because his tax liability was under scrutiny and he was under investigation. The Court concluded this argument ignored completely that Miranda was grounded squarely in the Court's explicit and detailed assessment of in-custody interrogations and that the holding was a narrow one–the admissibility of statements obtained from individuals subjected to custodial police interrogations. 425 U.S. at 346. Extension of the Miranda requirements to every case where a defendant was a suspect "would cut (the) Court's holding in that case completely loose from its own explicitly stated rationale." 425 U.S. at 345. Rather, the Court concluded, an interview is not custodial
"simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.' It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited." Oregon v. Mathiason, 429 U.S. at 495.
In weighing these various circumstances, parallels can be drawn to the circumstances in State v. Ninci, 262 Kan. 21, 936 P.2d 1364 (1997), where this court upheld the trial court's finding that the first hour of the defendant's interview was noncustodial. In Ninci, two officers interrogated the defendant in an interview room at the police station. The entire interview lasted approximately 3 and 1/2 hours, but the un-Mirandized portion of the interview only lasted 1 hour. Although two police officers were present, each one left the room several times for various reasons. The discussion between the officers and Ninci during the first hour of the interview was amiable. As noted by the Ninci court, the officers asked Ninci if he had any plans for the remainder of the evening, which indicated that the interview could have been postponed to a more convenient time for him, if necessary. 262 Kan. at 37.
In addition, while the officers stated that they were trying to clear Ninci as a "suspect" and that they would "cut [him] loose" later in the evening, they also thanked Ninci for voluntarily coming in and helping them with the investigation. At one point, the officers provided Ninci with a beverage at his request and asked him if he wanted cake. Ninci was not physically restrained in any way. This court observed that the police obviously wanted to question Ninci as a potential suspect but that the officers testified they also wanted to talk to Ninci to find out more about another person whose car was seen at the victim's house the same week as the murder. Ninci voluntarily came to the police station in his own car in response to a police request. 262 Kan. at 37.
One of the officers asked for Ninci's driver's license at the beginning of the interview and did not immediately give the license back to Ninci. However, a few minutes into the interview, the officer placed the license on the table within Ninci's reach. When Ninci asked to have his license back after an hour had passed, the officer readily handed it back to him. When the interview ended, Ninci was arrested because he had admitted to being involved in the victim's murder. 262 Kan. at 37.
This court held there was substantial evidence to support the trial court's findings. Concluding that a reasonable person would have felt free to leave under the same circumstances, at least up until the time Ninci started confessing to the crime, the court held that Ninci was not in custody during the first hour of the police interrogation, and this first hour of the interview constituted only an investigatory interrogation,