IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 98,389 1
STATE OF KANSAS,
Appellee,
v.
KIMBERLY DANIELLE SHARP,
Appellant.
SYLLABUS BY THE COURT
1. When analyzing a trial court's denial of a motion to suppress a confession, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. The appellate court does not reweigh evidence, pass upon the credibility of witnesses, or resolve conflicts in the evidence. The determination of whether a confession is involuntary is a legal conclusion requiring de novo review.
2. To determine whether a confession is voluntary, a trial court evaluates the totality of the circumstances. The burden of proving that a confession is admissible is on the prosecution, and the required level of proof is by a preponderance of the evidence.
3. A nonexclusive list of factors bearing on the voluntariness of a statement by an accused include the accused's mental condition; the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; the fairness of the officers conducting the interrogation; and the accused's fluency with the English language. The essential inquiry is whether the confession was the product of the free and independent will of the accused. The appellate court reviews the trial court determinations of these factors for substantial competent evidence, i.e., as findings of fact. Substantial competent evidence is that which possesses both relevance and substance and which furnishes a substantial basis in fact from which the issues can reasonably be resolved.
4. Coercion of an accused's confession can be mental as well as physical and include promises as well as threats. Coercive police activity is a necessary predicate to the determination that a confession is not voluntary.
5. In order for a promise of some benefit to the accused, including leniency, to render a confession involuntary, the promise must concern action to be taken by a public official. The promise must be such as would likely cause the accused to make a false statement to obtain the benefit of the promise, and the promise must be made by a person whom the accused could reasonably believe to have the power or authority to execute it.
6. An appellate court accepts as true all inferences to be drawn from the evidence which support or tend to support the findings of the trial court.
7. Under the totality of the circumstances in this case, the defendant's confession was properly admitted into evidence as freely and voluntarily given. Substantial competent evidence supports the trial court's finding that at no time did the defendant appear to be under coercion or operating under any promises. Additionally, any purported promise of immunity was clearly conditioned upon the defendant not later doing or saying anything to inculpate herself. Furthermore, any purported promise to help her find a place to stay was not made in exchange for her statement. Finally, any purported promise to help her children find a place to stay was a collateral benefit and not a promise which would overcome her will.
8. The credibility of an accomplice witness is subject to attack, and great leeway should be accorded the defense in establishing the witness' subjective reason for testifying. On the other hand, the propriety and scope of the examination lies within the sound discretion of the trial court.
9. The party who asserts abuse of discretion bears the burden of showing it.
10. Under the facts of this case, the trial court did not abuse its discretion in barring defendant from cross-examining an accomplice witness on the accomplice's hope for a downward dispositional or durational departure sentence.
11. As a general rule, a party must make a timely and specific objection to the admission of evidence in order to preserve the issue for appeal.
12. An appellate court reviews de novo the question of whether a statement of a coconspirator made outside the presence of the defendant is an element required for admissibility of a hearsay statement under K.S.A. 60-460(i)(2).
13. The language is disapproved from past opinions requiring statements of a coconspirator to be made outside the presence of the defendant in order to be admissible under K.S.A. 60-460(i)(2).
14. A defendant cannot object to the introduction of evidence on one ground at trial and then assert another ground on appeal.
15. Before evidence will be admitted under the coconspirator exception in K.S.A. 60-460(i)(2), there must be independent evidence of the existence of a conspiracy. In order to show a conspiracy, it is not necessary that there be any formal agreement manifested by formal words written or spoken; it is enough if the parties tacitly come to an understanding in regard to the unlawful purpose, and this may be inferred from sufficiently significant circumstances.
16. A conspiracy is not terminated when an attempt is made to conceal the offense.
17. Under K.S.A. 60-460(i)(2), among other things the hearsay statements of a coconspirator or coparticipant which implicate the accused must be relevant to the plan to commit a crime or civil wrong or to the plan's subject matter and made while the plan was in existence and before its complete execution or other termination.
18. Under the facts of this case, the statements of a coconspirator were correctly admitted into evidence as they related to the subject or plan of the conspiracy and were made during the pendency of the conspiracy.
Appeal from Shawnee district court; THOMAS R. CONKLIN, judge. Opinion filed June 19, 2009. Affirmed.
Debra J. Wilson, of the Capital Appeals and Conflicts Office, argued the cause and was on the brief for appellant.
Robert D. Hecht, district attorney, argued the cause, and Jamie L. Karasek, assistant district attorney, and Steve Six, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
NUSS, J.: Kimberly Sharp was convicted of felony murder and kidnapping and received concurrent sentences of life without the possibility of parole for 20 years for the murder and 61 months for the kidnapping. She now directly appeals her convictions. Our jurisdiction is under K.S.A. 22-3601(b)(1) (conviction of an off-grid crime). The convictions and sentences of one of her codefendants, Carl Lee Baker, who was tried separately, were affirmed by this court in State v. Baker, 287 Kan. 345, 197 P.3d 421 (2008).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the trial court err in denying Sharp's motion to suppress her confession? No.
2. Did the trial court err in limiting the defense's cross-examination of an accomplice witness? No.
3. Did the trial court err in admitting into evidence statements from two codefendants under the coconspirator exception to the hearsay rule? No.
4. Did cumulative error deny Sharp a fair trial? No.
Accordingly, we affirm Sharp's convictions.
FACTS
As an advocate for the homeless, David Owen used unconventional methods. These methods included offering the use of his phone cards and cell phones for them to call their loved ones. Owen also tried to force them to return to their families by destroying their camps and taking their equipment and supplies. He often photographed the destroyed camps and carried the pictures while visiting other camps.
Owen had been reported missing for several weeks when on July 2, 2006, a canine search team found his body in a heavily wooded area on the bank of the Kansas River in Topeka. No personal property, including identification, shoes, socks, or eyeglasses, was located on or around Owen's body. The officers recovered an axe and some pieces of rope when they searched the surrounding area. The coroner opined that Owen had been dead for several weeks or months, and he listed the manner of death as homicide. Approximately 10 days after discovery of Owen's body, defendant Kimberly Sharp and three other homeless people–her boyfriend Charles Hollingsworth, Carl Lee Baker, and John Cornell–were arrested and subsequently charged with kidnapping and felony murder.
Sharp and Hollingsworth were seated on a bench near the river when detectives first encountered them. Detective Bryan Wheeles noticed that Sharp was scared, so he walked her further down the street, away from Detective Mike Barron and Hollingsworth. Wheeles explained that they needed to talk to her about their investigation into Owen's death. Wheeles and Barron then separately transported Sharp and Hollingsworth to the Topeka Police Department to be interviewed.
Wheeles was informed on the way to the station that there was an outstanding warrant for Sharp out of Emporia, Kansas. When they reached the station, Sharp was put in an interview room where Wheeles Mirandized her after telling her that she was under arrest. Wheeles did not tell her specifically why she had been placed under arrest.
Wheeles then conducted a fully recorded interview with Sharp. The interview contained three basic parts: (1) an initial interview lasting 20 or 30 minutes in which Sharp described most of the events surrounding Owen's kidnapping; (2) a re-enactment of the crimes with Wheeles at the homeless camp; and (3) a final interview at the station.
During Sharp's initial interview, she told Wheeles that on Thursday, June 15, 2006, she was sitting around a campfire with Hollingsworth, Baker, and Cornell. Around 7 p.m., Owen walked into the camp and told these homeless people that they should not camp and should call their families. Everyone was upset by his remarks, especially when he said he would have burned their camp if they had not been there.
Sharp told Wheeles that Baker began arguing with Owen, who then said he was going to call the police. When Owen reached for his phone, Baker and Hollingsworth knocked him to the ground. Hollingsworth then struck Owen and dragged him into the woods.
According to Sharp, she also headed into the woods to see what was going on. There she saw Owen on his knees and Hollingsworth with "an axe that he was going to [use to] kill him like that." Sharp told Hollingsworth, "[N]o, don't do that, don't do that. I can't be an accessory to this shit, you know. I can't do that. I got two kids . . . ." She said Cornell then brought Hollingsworth a rope which was used to tie up Owen. Baker stuffed a rag in Owen's mouth, and the two men continued to beat him. Sharp told Wheeles that Cornell then burned all of Owen's possessions, including his pictures, notebooks, shoes, and socks. Hollingsworth and Baker then dragged Owen into the woods, and Sharp never saw Owen again.
After additional discussion during which Sharp continued to deny any participation, Wheeles specifically asked if she helped burn Owen's possessions. She denied helping burn or having Owen's phone or bag at any point. Sharp eventually admitted that she helped burn. When Sharp then asked if she was going to jail, Wheeles responded, "No, no, no, no, no, no, no, no. You are a witness to this thing as long as you do not do something dumb and jam yourself." He further explained that if she had been scared she should tell him and, "Just don't tell me no if I ask you something." Sharp then detailed her role in burning Owen's phones and notebooks.
After Sharp informed Wheeles that her two kids were with Baker at another homeless camp, he left the interview. Upon his return he told her they were going to work together to get her kids "out of harm's way." He advised that Baker was a registered sex offender and had an outstanding arrest warrant for a parole violation. They then left together, retrieved the kids, and brought them back to the station within the hour to be with Sharp.
Approximately 1 hour later Wheeles escorted Sharp to the camp where she re-enacted the events surrounding Owen's kidnapping and murder. During the re-enactment, Sharp told Wheeles that when Hollingsworth was standing over Owen with an axe, she had said to him, "No, don't kill him." Wheeles requested clarification, "Did you say 'No, don't kill him,' or did you say, 'No, don't kill him here?'" Sharp responded, "Don't kill him here." (Emphasis added.) Sharp also admitted that Hollingsworth had then asked her to bring him some rope, and she told Cornell to go get it. She further admitted that it was her idea to burn Owen's things so there would not be any evidence to tie her to the events. "I said we have to burn it 'cause I don't need the evidence. I don't want to be tied to this."
Following the re-enactment, Wheeles brought Sharp back to the station. He asked her a few more questions and then left her alone in the interview room with her children. Approximately 1 hour after returning to the station, Wheeles was notified that the district attorney's office had decided to charge Sharp. When Wheeles told her that she was going to be placed under arrest, she became angry and upset. Sharp accused Wheeles of lying to her and said that he had tricked her, telling him: "This is bullshit."
Sharp later moved to suppress her statements. After a hearing, the trial court denied her motion. Her recorded statements were subsequently played to the jury.
Sharp testified at trial. Consistent with her initial interview and re-enactment, she admitted to burning two of Owen's phones, his picture album, and some loose papers. Also consistent with her re-enactment, she admitted that Hollingsworth asked her to bring some rope, and she told Cornell to go get some. However, while during the re-enactment she had admitted telling Hollingsworth, "[D]on't kill him here," she testified to simply saying, "Don't kill him." (Emphasis added.)
Pursuant to a plea bargain, codefendant Cornell also testified at trial, painting a slightly different picture of Sharp. According to Cornell, Sharp got angry when she opened Owen's bag and saw the pictures Owen had taken of other destroyed camps. She then grabbed the phone and threw it in the incinerator. Sharp got madder and madder, and then threw Owen's entire bag in the fire.
Cornell admitted that he took the rope from Baker and gave it to Hollingsworth. He testified that Sharp had followed Hollingsworth into the woods with Owen, and she stood by as Cornell handed over the rope. At that time Sharp told Cornell that they were going to make Owen sleep outside with the mosquitoes. According to him, Sharp said, "We're not gonna kill him, we're just gonna tie him up to a tree, have him spend the night outside." Consistent with Sharp's statement about her belief that when she saw Owen on his knees and Hollingsworth with "an axe, that he was going to kill him like that," Cornell testified that Sharp said she thought Hollingsworth "was gonna chop [Owen] up."
Cornell further testified that Owen was brought back to the camp briefly before Hollingsworth and Baker dragged him out of sight to the levee. He said that after they left, Sharp asked him to dump the incinerator in the next camp because it was smoldering and smelled bad. Cornell and Sharp remained in the camp burning Owen's items while the others were gone.
According to Cornell, when Hollingsworth and Baker returned to the camp without Owen, Sharp asked them how Owen was doing. Hollingsworth responded by saying, "[P]robably dead by now" and "He was turning blue when we left." Later that night while hunting for firewood, Baker told Cornell that Hollingsworth had "lynched" Owen.
The jury found Sharp guilty of kidnapping and felony murder. She was sentenced to concurrent sentences of life imprisonment without the possibility of parole for 20 years on the felony-murder conviction, and 61 months for the kidnapping conviction.
Additional facts will be provided as necessary to the analysis.
ANALYSIS
Issue 1: The trial court did not err in denying Sharp's motion to suppress her confession.
Sharp argues that her confession should have been suppressed because it was involuntary and unreliable. She primarily argues that her confession, including her re-enactment at the crime scene, was exchanged for "an explicit promise of leniency." Specifically, Sharp contends that Detective Wheeles promised her she would not go to jail in connection with Owen's murder and that this promise, combined with his assurances that he would help her and her children, as well as her "particularly vulnerable position," all worked to overcome her will.
Sharp argues that these factors combined to lead her to make two critical, involuntary admissions to Wheeles during the subsequent re-enactment: (1) that she told Hollingsworth, "Don't kill him here," which suggests she had no objection to Owen being killed elsewhere, and (2) that it was her idea to burn Owen's items: "I said we have to burn it 'cause I don't need the evidence. I don't want to be tied to this." (Emphasis added.)
The State primarily counters that the evidence does not support Sharp's claim that she was improperly induced to make her confession.
Standard of Review
When analyzing a trial court's denial of a motion to suppress a defendant's confession, an appellate court reviews "the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard." An appellate court does not "reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence." State v. Harris, 284 Kan. 560, Syl. ¶ 9, 162 P.3d 28 (2007); State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005). The determination of whether a confession is voluntary is a legal conclusion requiring de novo review. Swanigan, 279 Kan. at 31; see Arizona v. Fulminante, 499 U.S. 279, 287, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991).
We have held that "the voluntariness of a confession must be determined under the totality of circumstances." State v. Brown, 285 Kan. 261, Syl. ¶ 2, 173 P.3d 612 (2007). "The State has the burden of proving that a confession is admissible, and the required proof is by a preponderance of the evidence. The essential inquiry is whether the statement was the product of the accused's free and independent will. [Citation omitted.]" Brown, 285 Kan. at 272. Other courts have described the question as whether the authorities overbore the defendant's will and critically impaired his or her capacity for self-determination. See, e.g., United States v. Lopez, 437 F.3d 1059, 1064-65 (10th Cir. 2006); United States v. LeBrun, 363 F.3d 715, 725 (8th Cir. 2004).
Our analysis must acknowledge that "coercive police activity is a necessary predicate to the finding that a confession is not voluntary." Colorado v. Connelly, 479 U.S. 157, 167, 93 L. Ed. 2d 473, 107 S. Ct 515 (1986). We must also recognize that the United States Supreme Court has used a "coerced confession" interchangeably with an "involuntary" one. See Fulminante, 499 U.S. at 288 (detailing facts of Payne v. Arkansas, 356 U.S. 560, 2 L. Ed. 2d 975, 78 S. Ct. 844 [1958]). Thus, coercion can include inducing by promise, as well as by threat.
Numerous factors are to be considered when determining if a statement is involuntary, which this court has consolidated into the following nonexclusive list based on previous Kansas case law:
"(1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language." State v. Johnson, 286 Kan. 824, 836, 190 P.3d 207 (2008) (citing to State v. Walker, 283 Kan. 587, 596-97, 153 P.3d 1257 [2007]).
On appeal, Sharp concedes that she primarily relies upon the fifth factor: Detective Wheeles' fairness in conducting the interrogation, i.e., because of his purported promises. We do not, however, form our conclusion by simply listing this one factor as possibly favoring involuntariness and enumerating all those other factors possibly favoring voluntariness. As one court has explained:
"[T]hese factors are not to be weighed against one another on a balance scale, with those favorable to a free and voluntary confession offsetting those tending to the contrary. Instead, the situation surrounding the giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. See Brady [v. United States], 397 U.S. [742,] 754, [25 L. Ed. 2d 747,] 90 S. Ct. [1463 (1970)]. 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. [Citation omitted]" Green v. Scully, 850 F.2d 894, 902 (2d Cir. 1988).
Cf. State v. Thompson, 284 Kan. 763, 803-04, 166 P.3d 1015 (2007) (in considering totality of circumstances to determine whether a consent to search is voluntary, "we do not expect courts to merely count the number of factors weighing on one side of the determination or the other").
Alleged promise of leniency/immunity
More than 100 years ago, this court addressed the then "well-settled law" of confessions:
"It is well settled that an extrajudicial confession will not be received in evidence unless it has been freely and voluntarily made. If it has been extorted by fear or induced by hope of profit, benefit, or amelioration, it will be excluded as involuntary. However, the advice or admonition to the defendant to speak the truth, which does not import either a threat or benefit, will not make a following confession incompetent." State v. Kornstett, 62 Kan. 221, 227, 61 P. 805 (1900) (cited with approval in State v. Harris, 284 Kan. 560, 579, 162 P.3d 28 [2007]).
This basic approach was clarified by the United States Supreme Court in Fulminante, 499 U.S. at 285:
"Although the Court noted in Bram [v. United States, 168 U.S. 532, 42 L. Ed. 2d 568, 18 S. Ct. 183 (1897)] that a confession cannot be obtained by '"any direct or implied promises, however slight, nor by the exertion of any improper influence"' . . . this passage from Bram . . . under current precedent does not state the standard for determining the voluntariness of a confession . . . ." (Emphasis added.)
On the issue of promises of leniency to the accused, this court has most recently stated
"that in order to render a confession involuntary as a product of a promise of some benefit to the accused, including leniency, the promise must concern action to be taken by a public official; it must be such that it would be likely to cause the accused to make a false statement to obtain the benefit of the promise; and it must be made by a person whom the accused reasonably believes to have the power or authority to execute it. [Citations omitted.]" (Emphasis added.) Brown, 285 Kan. at 276.
See K.S.A. 60-460(f)(2)(B).
Motion to suppress
At the suppression hearing, the trial judge remarked that he observed Sharp's courtroom demeanor, observed Detective Wheeles testify, watched Sharp's recorded interviews with Wheeles and her recorded re-enactment, and heard the arguments of counsel. The court then found:
"[S]he was given her Miranda rights, she voluntarily gave up her Miranda rights, she talked, I saw her in that interview room, I saw her with a bottle of water . . . . In addition, there's times when she stretches out in the law enforcement room when he [Wheeles] leaves, she stretches from one chair to another one. She appears to be very relaxed, very candid. Her responses are very clear. Occasionally maybe have to ask a question or what's meant. At no time does she appear that she's under duress. At no time does she appear that she's under the influence of anything in so far as her responses to any questions. At no time and definitely you can see it when she's walking in the area down by the river during the re-enactment she has no trouble positioning herself in different positions, positions Detective Wheeles in different positions where people were at given times allegedly when this alleged crime or crimes occurred. Um, she indicated eventually what participation she had in the alleged crime, or at least a portion of it if not all that, I do not know.
"Um, they got the kids, the kid[s] were in the room with her, she was appropriate in so far as the kids were concerned, in so far as trying to get them to quiet down . . . . At no time did she appear she was under duress, coercion, operating under any promises. Wheeles talked to the detective and the length of [detention] wasn't unusual, she was given things to drink, she was even taken out–she took them out to the scene of re-enactment. They went to two different camps while they were there. She was able to do that, she was able to walk around, her demeanor was fine. As the officer testified, she was cooperative, which comes across on the video." (Emphasis added.)
After making these findings, the court concluded that Sharp's statements were freely and voluntarily given:
"Therefore, the Court denies the motion to suppress and the statements in this court's opinion [were] freely, voluntarily and intelligently made and could be used at trial."
On appeal, Sharp highlights an excerpt of her digitally recorded interview–observed by the trial judge–as proof of Detective Wheeles' promise of leniency. Thirty-one minutes into the interview, and 25 pages into its transcript, Sharp tells Wheeles that while Baker and Hollingsworth were taking Owen to the river, a Mark Greene and a man named Joel came back to the campsite and noticed Cornell burning things. Sharp points to the italicized language:
"[Detective]: They just saw John [Cornell] burning stuff?
"[Sharp]: John–it was already melted. He had a fire going, I mean, real big and they just thought it was fire, you know. They just thought it was a fire.
"[Detective]: If you were scared and you were helping him [Cornell] burn things because you were afraid they were going to hurt you if you didn't go along, you need to tell me that right now. Are you picking up on what I'm telling you?
"[Sharp]: Uh-huh.
"[Detective]: You cannot, cannot hold anything back in this thing at all, Kim, you can't. This is as serious as it comes.
"[Sharp]: I know, I know, I know.
"[Detective]: Okay.
"[Sharp]: Yeah, I helped burn.
"[Detective]: Okay. Now –
"[Sharp]: Am I going to jail?
"[Detective]: No, no, no, no, no, no, no, no. You are [only] a witness to this thing as long as you do not do something dumb and jam yourself. If you were scared, explain to me that you were scared–
"[Sharp]: I was very.
"[Detective]: –when you did what you did. I understand the whole situation.
"[Sharp]: Okay.
"[Detective]: Just don't tell me no if I ask you something.
"[Sharp]: Okay.
"[Detective]: Okay.
"[Sharp]: They [Mark and Joel] left. Charles [Hollingsworth] told me, 'Burn everything,' told me and John [Cornell], 'Burn everything.'
"[Detective]: Okay.
"[Sharp]: I said, 'I ain't touching nothing,' you know and he said, 'You'll [not] be burnt, don't worry about it.' I took the phone, I took the phones, I burned those first and then we took and we looked in the notebook and stuff and burned those and we had two–there was two fires going and there was one in like a little camp fire thing, like a trash thing that you're supposed to really have for a camp and we burnt that, we burn that and then I told John to get the other fire pit going." (Emphasis added.)
At the suppression hearing, Wheeles testified about this excerpt and other parts of the interview. For example, he acknowledged that he told Sharp that she could stop talking to him if she ever felt uncomfortable. According to the transcript, at the outset he advised her of her Miranda rights, e.g., her right to remain silent, right to an attorney, and that anything she said "can and will be used against you in a court of law." Immediately afterward, the interview transcript clearly reveals:
"[Detective]: Do you want to talk to me or answer questions at least until you don't feel comfortable doing it anymore?
"[Sharp]: Yeah, I'll do it."
Wheeles also testified at the hearing that he made no promises or threats to Sharp. He was particularly asked on cross-examination about the first portion italicized above. He explains that he did not recall using the words "I promise you":
"[Defense Counsel]: You told [the prosecutor on direct examination] that you made him [sic] no promises?
"[Detective]: Right.
"[Defense Counsel]: Let me ask you this: When she asked you if she was going to jail and you said, 'No, no, no, no, no, no, I promise you,' is that a promise?
"[Detective]: I don't recall. Did I say 'I promise you?' If it–yeah, that would be considered to be a promise. I thought she was going to be a witness in this case, as I've stated earlier.' (Emphasis added.)
Wheeles was also cross-examined about the second portion italicized above, i.e., "Just don't tell me no if I ask you something." He explains that this was simply another admonition to Sharp to tell him the truth because he had already caught her being untruthful:
"[Defense Counsel]: You did tell her 'just don't tell me no if I ask you;' you did say that, didn't you?
"[Detective]: I told her to tell me the truth and not to lie. To my recollection, that's what I told her, and I told her not to keep anything back and to tell me everything she knew about the case. And I was very s