262 Kan. 21
(936 P2d 1364)
No. 74,725
STATE OF KANSAS, Appellee, v. MICHAEL D. NINCI, Appellant.
SYLLABUS BY THE COURT
1. A trial court's denial of a motion to suppress evidence will be upheld on review if it is supported by substantial competent evidence.
2. Section 15 of the Kansas Constitution Bill of Rights provides protection identical to that provided under the Fourth Amendment to the United States Constitution. The wording and scope of the two constitutional clauses are identical for all practical purposes. If conduct is prohibited by one, it is prohibited by the other.
3. Under the Fourth Amendment, evidence obtained pursuant to defendant's consent is admissible only if defendant's grant of consent is voluntary under the totality of the circumstances. Therefore, in a case in which evidence is obtained pursuant to consent granted subsequent to illegal police actions, the exploitation issue is resolved by determining whether or not defendant's grant of consent was voluntary under the totality of the circumstances. The police officers' reason or basis for asking for defendant's consent is irrelevant to the exploitation issue unless the manner in which the police officers request consent renders defendant's consent involuntary. When defendant's grant of consent is voluntary, then there is no exploitation because the findings of voluntary consent and exploitation are mutually exclusive.
4. To be voluntary, the defendant's consent must be unequivocal and specific and freely and intelligently given. The consent must be given without duress or coercion, express or implied. The State bears the burden of proving voluntariness. The question of voluntariness should be decided in light of the totality of the circumstances, considering whether the individual was threatened or coerced and whether the individual was informed of his or her rights.
5. The admissibility of statements made by a defendant before Miranda warnings are given depends on whether the statements are the result of a custodial interrogation or an investigatory interrogation.
6. In order for the waiver of Miranda rights to be knowing and voluntary, two requirements must be met. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
7. When a trial court conducts a full hearing on admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at trial, an appellate court accepts that determination if it is supported by substantial competent evidence.
8. A defendant cannot raise points on appeal which were not presented to the trial court.
9. Invocation of the Fifth Amendment right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.
10. When a jury is instructed that intentional acts by a defendant must be proven in order to convict a defendant of aiding and abetting a crime, a jury understands that proof of mere association or presence is insufficient to convict the defendant of aiding and abetting. It is therefore not error to refuse to give a defendant's requested instruction on "mere association."
11. A prosecutor commits error when the prosecutor uses language that was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.
12. The law is well settled in this state that in a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome.
13. A trial court is given considerable latitude in determining the admissibility of a statement under K.S.A. 60-460. The standard of appellate review concerning the admission of hearsay evidence is abuse of trial court discretion.
14. If an utterance previously made out of court is offered in evidence merely for the purpose of establishing what was then said, and not for the purpose of establishing the truth of the statement, the testimony is not hearsay. If relevant, it is admissible through the person who heard it.
15. The defendant has the burden of furnishing a record which affirmatively shows prejudicial error occurred in the trial, and absent such a record, the reviewing court assumes the trial court's action was proper.
16. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.
17. The constitutional prohibition against double jeopardy is directed to the identity of the offense and the act. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied when determining whether there are two offenses or only a single offense is whether each statutory provision requires proof of an element that the other does not. Where one statute requires proof of an element that the other does not, the crimes are not the same, even though proof of the separate crimes may substantially overlap.
Appeal from Johnson district court; WILLIAM A. CLEAVER, judge. Opinion filed April 18, 1997. Affirmed.
Elizabeth Seale Cateforis, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, and Michael D. Ninci, pro se, were with her on the briefs for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
ABBOTT, J.: This is a direct appeal by the defendant, Michael D. Ninci, from his convictions of felony murder (K.S.A. 1992 Supp. 21-3401), robbery (K.S.A. 21-3426 [Ensley 1988]), and aggravated burglary (K.S.A. 1992 Supp. 21-3716). Ninci appeals, raising some 13 issues.
Michael Owen was killed at his home in Leawood, Kansas, in the late evening or early morning of September 10 or 11, 1992. Owen's neighbors discovered his body outside his townhouse the morning of September 11, 1992.
A neighbor of Owen's, Lauren Auch, was out walking her dog on September 10, 1992, at approximately 10:30 p.m., and she noticed an unfamiliar car parked in Owen's driveway. Auch testified at trial that photos of Ninci's Saab looked very similar to the car she had seen in the driveway on the night of the murder, but she could not say for certain that it was the same car.
A pathologist discovered two wounds to Owen's head, indicating that he had been hit in the head with a heavy object. She also observed a deep cutting wound across Owen's neck which sliced his jugular vein. The pathologist concluded that Owen had bled to death after his throat was cut.
A week into the investigation, Harold Glen Ford had become the prime suspect in the case. Elizabeth Berkley was identified as Ford's girlfriend and was interviewed several times. During the third interview, Berkley gave the police Ninci's name. Berkley told the police that on September 10, 1992, Ninci and Ford had gone to a house in Leawood to visit with someone.
During a 3-hour videotaped interview at the Leawood police station, Ninci admitted that he was present at Owen's home the night of the murder and was with Ford. Ninci indicated that he had only known Ford for a few months and did not know him well. Ninci knew that Ford sold and used cocaine. During their acquaintance, Ford had told Ninci that he knew a rich guy named Mike and that Ford wanted to kill him, but Ninci "blew off" this talk. On the afternoon of September 10, 1992, Ford and Ninci visited Owen in his Leawood home. Ninci then realized that Owen was "Mike," the person Ford wanted to kill. The two men stayed at Owen's residence for approximately 40 to 45 minutes, during which time Owen showed them around his home. Owen was a collector and had collections of art, wine, glasses, baseballs, and jewelry. Ninci told the police that Owen invited them to come back later that evening after Owen returned from working out.
Ford and Ninci returned to Owen's home later that evening. Ninci parked his Saab in Owen's driveway. According to Ninci, the three just socialized for awhile. Ninci stated that he used the bathroom and that after he returned from the bathroom, he looked around and saw Owen "laid out." Ninci stated that he saw Ford cut Owen's throat. Ninci stated that Ford was telling him what to do and was moving around the house taking things. Ninci admitted that he also took some items from Owen's home. According to Ninci, Ford directed Ninci to drive him to the airport. Ninci did so, and Ford flew to Las Vegas.
The police recovered some of Owen's property in Ninci's home, in Ninci's parents' home, and from Timothy Haas. At trial, Haas explained how he came to be in possession of Owen's property. Haas testified that at 4 a.m., on September 11, 1992, he was awakened by insistent, loud knocking at his door. The knocking lasted 10 to 15 seconds. Later, the phone rang. Haas let his answering machine pick up, but when he heard Ninci's voice, Haas answered. Ninci told Haas he had something real important to come over and talk about. After a few minutes, Ford and Ninci arrived at Haas' apartment. When the two arrived, their clothing was not torn or bloody. Ford told Haas that he had items he wanted to get rid of. Ford, Haas, and Ninci bargained about the price of some watches. Ninci tried to convince Haas that the Rolex and Gucci watches were real. Haas bought two watches, a broken chain, some silver coins, and some pieces of jade. All of these items were later identified as having belonged to Owen.
Later, Ninci gave Haas a gun, another watch, and a coin, all of which were identified as having belonged to Owen. Haas turned over all the property to the police and was granted immunity based on his promise to testify.
The police found Ford in a hotel room in Las Vegas. They recovered several pieces of property in his possession which had belonged to Owen.
Prior to trial, Ford pleaded guilty to Owen's murder. Ford did not testify at Ninci's trial.
At trial, Ninci relied on a compulsion defense and argued that Ford merely used Ninci to get a ride to Owen's house. Ninci also argued that Ford had an independent motive to kill Owen, because Owen knew Ford had killed another man, Pablo Garcia.
The jury found Ninci guilty of first-degree felony murder, robbery, and aggravated burglary. Ninci was sentenced to life for felony murder, 5 to 20 years for robbery, and 5 to 20 years for aggravated burglary, with the sentences to run consecutively.
I. PARKING LOT STOP
One week after Owen's body was discovered, Harold Glen Ford had become the prime suspect in Owen's homicide. The police interviewed Ford's girlfriend, Elizabeth Berkley, on the morning of September 19, 1992. Detective Hansen participated in the interview of Berkley. Hansen testified at the suppression hearing that Berkley provided the police with the following information: Berkley mentioned that Ninci was an associate of Ford's. Ford had told Berkley that Ninci slit someone's throat near a bar in Westport. Berkley was afraid of Ninci and believed him to be violent. According to Berkley, Ninci and Ford had gone to a home in Leawood and visited with an individual the day of the Owen homicide. Then, Ford and Ninci went back out to the Leawood address later in the evening on that same day. When Berkley returned home from work either late on September 10, or the early morning hours of September 11, Ford had not yet returned home. Berkley told the police that Ford finally came home, told Berkley he knew "this would happen," and told Berkley that he would be in touch. Ford then picked up a bag that was already packed and left.
Two attempts were made to contact Ninci at his apartment. Later that same day, two officers in an unmarked police car returned to Ninci's address for a third time. En route to the address, the officers identified a blue Saab with a license plate number registered to Ninci. Hansen testified that Ninci was not a suspect at that time. Instead, the police wanted to find out more about Ford and Ford's whereabouts from Ninci. The officers were instructed not to contact Ninci but to wait for jurisdictional officers. The officers followed the car to Ninci's apartment but did not stop it. Two other officers were dispatched to Ninci's apartment.
Upon arriving at Ninci's address, Ninci got out of his car and went into a building carrying laundry. A short while later, Ninci returned to his car and drove into another parking lot in the same complex. At this point, the officers lost sight of Ninci. Apparently, Ninci got out of his car and went into an apartment building. When the other two officers arrived, the two officers at the scene informed them that Ninci's whereabouts were unknown. The four officers set up surveillance on the blue Saab. Two officers sat in an unmarked police car outside of the parking lot where they had a view of the blue Saab, and two officers sat in the parking lot near the only ingress/egress to the parking lot area. The officers observed Ninci's car for about an hour. Then, a white male came out of the apartment building and started walking toward the Saab. The officers who were observing the Saab were unsure if the man was headed toward the blue Saab, so they waited at their location until they saw the white male begin to open the door of the Saab. The officers then left their place of surveillance and went to the parking lot. As the officers were pulling into the entrance of the parking lot, Ninci was exiting the same way. The two cars met at the entrance/exit, and both cars stopped about 15 to 20 feet apart. Then, the second unmarked police car, which had been waiting in the parking lot by the entrance, pulled up behind Ninci's car.
Only one officer, Detective McClure, got out of his car. McClure identified himself as a police officer and asked if he could talk to Ninci. As McClure identified himself, Ninci got out of the car. According to Detective Hansen, Ninci was out of his car before the second police vehicle pulled up behind Ninci's car. The police car was unmarked and it was not flashing its lights or sounding its sirens. McClure asked the driver if he was Michael Ninci. The driver said he was. McClure asked for identification because he had previously seen a high school picture of Ninci and he did not think the driver looked like the picture. Ninci showed McClure his driver's license. McClure confirmed Ninci's identity and returned his driver's license. McClure then patted Ninci down for officer safety and asked him if he would go to the police department for an interview. Ninci responded, "Sure." Ninci asked if he should ride to the police station with the officers, but McClure told Ninci that he could drive his own car to the station. McClure gave Ninci the address of the Leawood Police Department. Ninci was not sure where the police station was located, so McClure told Ninci that, if he wanted, he could follow the other police car to the station. As the three cars headed to the Leawood Police Department, Detective Hansen's car was in front, Ninci's car was in the middle, and McClure's car was behind Ninci's car. According to McClure, he never told Ninci that he was required to come to the police station, nor did he tell Ninci that he was under arrest. McClure said the contact was made to obtain more information on Ford. According to McClure, if Ninci had driven off and not gone to the police station, the officers would have taken no action except to try and re-contact Ninci later.
When McClure arrived at the Leawood Police Department, he was unsure if Ninci had arrived because he did not follow closely behind him. Upon arrival at the police station, Ninci walked into the lobby area of the police station with the two officers he had followed. Ninci was left alone in the lobby of the police station for at least 10 minutes. Ninci was sitting alone in the lobby when McClure made contact with him. At that time, McClure asked to see Ninci's driver's license again so he could copy some biographical information. McClure and Ninci walked back to the interview room and were joined shortly thereafter by Hansen. The interview started. After copying some identifying information from the driver's license, McClure laid the license on the table in front of him, within Ninci's reach. He placed it there because he was finished with it. During the interview, Ninci admitted to being present at Owen's home when Owen was killed. Ninci also signed a consent to search form during this interview. The subsequent search found several items belonging to Owen.
Ninci challenged the constitutional basis of this parking lot stop in the trial court, alleging that the police did not have probable cause or a reasonable basis for the stop. Since the stop was unconstitutional, Ninci alleged, the subsequent interview and evidence found as a result of the stop should be inadmissible at trial because they were the fruit of the poisonous tree. According to Ninci, the trial court did not ever reach the specific argument relating to the stop. However, the trial court did make the following finding:
"The police undoubtedly had suspicions about the defendant at the time he was stopped and was asked if he would come to the Leawood police station to be interviewed regarding the homicide of Michael Owen. There is nothing that prohibits the police from asking citizens to cooperate in investigations. The fact that he was allowed to drive his own vehicle there is significant in determining whether or not the defendant was under arrest. The fact that perhaps one police car was in front and one may have been following behind is not determinative. Viewed from the rational or reasonable person's point of view, it is hard for this court to conclude that a reasonable person would have believed himself to be under arrest. When they arrived at the police station he was left alone for five minutes, again not the conduct this court believes a reasonable person would expect the police to display if that person were under arrest. During the interview he was thanked for coming in and he was asked if he had plans for that evening. He responded that he did not. The interview was initiated at 7:08 P.M. and maintained at low key until after the Miranda warning was given shortly after 8:00 P.M."
A trial court's denial of a motion to suppress evidence will be upheld on review if it is supported by substantial competent evidence. State v. Garcia, 250 Kan. 310, 318, 827 P.2d 727 (1992).
The Fourth Amendment to the United States Constitution provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Section 15 of the Kansas Constitution Bill of Rights provides:
"The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized."
Section 15 of the Kansas Constitution Bill of Rights provides protection identical to that provided under the Fourth Amendment to the United States Constitution. See State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993) ("[T]he wording and scope of the two sections are identical for all practical purposes. If conduct is prohibited by one it is prohibited by the other."); State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993).
The first question in analyzing this issue under § 15 and the Fourth Amendment is whether the police subjected Ninci to the kind of stop contemplated by the United States and Kansas Constitutions. If not, then the Fourth Amendment and § 15 are not even implicated and questions of reasonable suspicion, probable cause, or attenuation are not considered. "There are three types of police-citizen encounters: arrests, investigatory stops, and voluntary encounters. Voluntary encounters are not considered seizures and are not covered by the Fourth Amendment." State v. Crowder, 20 Kan. App. 2d 117, 119, 887 P.2d 698 (1994).
While finding it hard to believe that Ninci was not a suspect when the officers encountered him in the parking lot, the trial court concluded that Ninci's interaction with the police in the parking lot was a voluntary encounter which did not implicate the Fourth Amendment. As such, the trial court found that reasonable suspicion or probable cause was unnecessary because a seizure did not occur. Thus, any lack of reasonable suspicion or probable cause did not violate the United States or Kansas Constitutions and did not require a suppression of the interview and search conducted after the parking lot encounter. Whether the stop of Ninci in the parking lot was voluntary or an illegal stop is not significant to the outcome of this case. Even assuming the stop was unconstitutional (we do not reach that issue) enough attenuation between the stop and the subsequent interview and search existed so as to allow the videotape of the interview and the search results into evidence.
In State v. Henry, 14 Kan. App. 2d 416, 792 P.2d 358, rev. denied 247 Kan. 706 (1990), an officer stopped the defendant's car without reasonable suspicion. During the unconstitutional stop, the officer asked to search the defendant's car and glove compartment. The defendant freely and voluntarily consented to the search of the vehicle and glove compartment. The officer found drugs in the glove compartment, and the defendant was charged with a drug possession crime. The defendant filed a motion to suppress the evidence found in the glove compartment, contending that the evidence was the fruit of a poisonous stop. The trial court granted the defendant's motion. The State appealed, arguing that the defendant's "consent removes any taint from the illegal search, thereby making the evidence admissible." 14 Kan. App. 2d at 419.
In deciding the Henry case, the Court of Appeals cited to United States v. Carson, 793 F.2d 1141, 1147-48 (10th Cir.), cert. denied 479 U.S. 914 (1986), which provides "'that voluntary consent, as defined for Fourth Amendment purposes, is an intervening act free of police exploitation of the primary illegality and is sufficiently distinguishable from the primary illegality to purge the evidence of the primary taint.'" 14 Kan. App. 2d at 419. The Henry court also noted that in deciding Carson, the 10th Circuit reviewed Wong Sun v. United States, 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963),
"in which the United States Supreme Court held that, although the evidence would not have come to light but for the prior illegal police conduct, such evidence is not inadmissible per se. The appropriate question is whether the evidence has been discovered by exploitation of the primary illegality or instead by sufficiently distinguishable means so as to be purged of the primary taint." 14 Kan. App. 2d at 419.
The Carson court decided that '""exploitation of the primary illegality""' in the context of voluntary consent means the police used the fruits of the primary illegality to coerce the defendant into granting consent. 793 F.2d at 1148; see 14 Kan. App. 2d at 419. Quoting Carson, the Henry court went on to say:
"'Under the Fourth Amendment, evidence obtained pursuant to defendant's consent is admissible only if defendant's grant of consent is voluntary under the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 2058-59, 36 L. Ed. 2d 854 (1973). Therefore, in a case in which evidence is obtained pursuant to consent granted subsequent to illegal police actions, the "exploitation" issue under Wong Sun is resolved simply by determining whether or not defendant's grant of consent was voluntary under the totality of the circumstances. The police officers' reason or basis for asking for defendant's consent is irrelevant to the "exploitation" issue unless the manner in which the police officers request consent renders defendant's consent involuntary. When defendant's grant of consent is voluntary, then there is no exploitation [because] the findings of voluntary consent and "exploitation" are mutually exclusive.' 793 F.2d at 1149." 14 Kan. App. 2d at 419-20.
Ninci contends that the primary illegality, being "boxed in" in a parking lot without reasonable suspicion by two police cars and four officers, was so exploitative that it coerced him into involuntarily consenting to the interview.
"To be voluntary, the defendant's consent must be 'unequivocal and specific' and 'freely and intelligently' given. The consent must be given without duress or coercion, express or implied. The State bears the burden of proving voluntariness. 793 F.2d at 1150 (quoting United States v. Abbott, 546 F.2d 883, 885 [10th Cir. 1977]). The Kansas Supreme Court recently reiterated that the question of voluntariness should be decided in light of the totality of the circumstances, considering whether the individual was threatened or coerced and whether the individual was informed of his rights. State v. Ruden, 245 Kan. 95, 774 P.2d 972 (1989)." 14 Kan. App. 2d at 420.
Johnson, 253 Kan. 356, enumerates certain factors which indicate whether consent after a primary illegality is voluntary so as to purge the primary taint or whether it is the coerced exploitation of the primary illegality. Factors which indicate that the exploitation of the primary illegality was used to coerce a consent are (1) if the officers used deception to gain consent, and (2) if the defendant had no knowledge that he could refuse to consent. Factors which indicate that the consent was voluntary and purged the primary taint are (1) if the officers' behavior was not threatening or coercive, (2) if the defendant indicated intent to consent, (3) if the defendant has an education, (4) if the defendant is not under the influence of intoxicants. See 253 Kan. at 366-67.
Under the totality of the circumstances, it appears that Ninci's consent was voluntary. While the police did not inform Ninci that he did not have to consent to the interview, the officers did not use deception to gain Ninci's consent. Further, the officers' behavior was not threatening or coercive. On the videotape, Ninci appears to be intelligent and articulate. None of the officers believed that Ninci was drunk during the interview, and Ninci indicated his intent to consent by answering, "Sure," when the police asked him if he would go to the Leawood police station for questioning. Thus, these factors weigh in favor of finding that Ninci's consent to the interview was voluntary. Further, at the interview, the officers thanked Ninci for coming in, indicating that he had voluntarily consented to the interview.
Ninci voluntarily agreed to go to the police station for questioning. Once at the interview, Ninci voluntarily signed the consent to search form. The primary stop was not exploited so as to coerce Ninci into consenting to the interview or the search. Instead, Ninci voluntarily consented to the interview and the search, and this consent constituted an intervening act which was sufficiently distinguishable from the primary stop so as to purge the interview and search of any taint. As such, the interview and the search were so attenuated from the parking lot stop that they did not constitute the fruit of the (possibly) poisonous stop. The trial court properly refused to suppress this evidence. The evidence was either admissible because the stop itself was properly conducted with reasonable suspicion or because the taint of the unconstitutional stop was purged by Ninci's voluntary consent to the interview and search.
II. POLICE STATION INTERVIEW
Ninci's interview at the police station began at approximately 7 p.m. and ended at approximately 10:30 p.m. The police did not read him his Miranda rights until shortly after 8 p.m. During the first hour of the interview, Ninci admitted visiting Owen at his home but denied knowing Ford or having any involvement in Owen's murder. During the later 2 1/2 hours of the interview, Ninci admitted to knowing Ford and to being present when Ford killed Owen, but he denied having any intent or plan to kill Owen with Ford.
In this issue, Ninci argues that the first hour of his interview at the police station should not have been admitted into evidence at trial because it was conducted without first having provided him with Miranda warnings. Ninci also argues that his confession in the later 2 1/2 hours of the interview, after the Miranda warnings were provided, should not have been admitted into evidence at trial because it was involuntarily extorted by fear and hope of benefit. Since the interview should not have been admitted into evidence, Ninci also contends that all of the evidence obtained as a result of the interview (he signed a consent to search form during the interview) should not have been admitted into evidence either.
The Fifth Amendment to the United States Constitution provides in part that "[n]o person . . . shall be compelled in any Criminal Case to be a witness against himself." Section 10 of the Kansas Constitution Bill of Rights guarantees this same right. In order to protect this right, the United States Supreme Court, in Miranda v. Arizona, 384 U.S. 436, 444,