IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 88,347
STATE OF KANSAS,
Appellee,
v.
JAMI DEL SWANIGAN,
Appellant.
SYLLABUS BY THE COURT
1. In reviewing a trial court's decision regarding the suppression of a 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.
2. In determining whether a confession is voluntary, a court is to look at the totality of the circumstances, including 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; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused.
3. An officer's misrepresentation during questioning of a suspect regarding evidence implicating the suspect does not by itself make the suspect's resultant confession involuntary, but must be viewed in conjunction with other circumstances to determine whether the confession was voluntary under the totality of the circumstances.
4. An officer's offer during questioning of a suspect to convey the fact of the suspect's cooperation to the prosecutor is insufficient to make a confession involuntary.
5. An officer's exhortation to a suspect to tell the truth during questioning is insufficient to make a confession involuntary.
6. An officer's threat during questioning to use a suspect's lack of cooperation against him or her is inconsistent with the suspect's Fifth Amendment right against self-incrimination. It does not make a confession involuntary per se, but is one factor to be considered in the totality of circumstances.
7. For a confession to be involuntary based on coercive conduct of the State, there must be a link between the coercive conduct and the confession.
8. In determining whether a coerced statement taints a subsequent Mirandized statement, a court looks at the length of time that passed between the two statements, the change in the place of the interrogations, the change in the identity of the interrogators, the purpose and flagrancy of the prior misconduct, and other intervening circumstances that would attenuate and dissipate the coercive effects of the prior misconduct.
9. An appellate court applies the harmless error rule to the erroneous admission of an involuntary confession. Any language to the contrary in State v. Esquivel-Hernandez, 266 Kan. 821, 975 P.2d 254 (1999), is disapproved.
Review of the judgment of the Court of Appeals in an unpublished decision filed December 19, 2003. Appeal from Saline district court; DAN D. BOYER, judge. Judgment of the Court of Appeals is reversed. Judgment of the district court is reversed. Opinion filed February 18, 2005.
Debra J. Wilson, capital appellate defender, argued the cause and was on the brief for appellant.
Bobby J. Hiebert, Jr., assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
NUSS, J.: Jami Del Swanigan was convicted by a jury of aggravated robbery. In a split decision, the Court of Appeals affirmed the conviction. State v. Swanigan, No. 88,347, unpublished opinion filed December 19, 2003. We granted Swanigan's petition for review pursuant to K.S.A. 20-3018(b).
Swanigan now raises two issues on appeal:
(1) Did the trial court err in denying his motion to suppress statements he made during police interrogations?
(2) Did the trial court err by failing to give a jury instruction regarding the voluntariness and truth of Swanigan's statements?
We reverse the conviction and remand for a new trial because of error on issue one, which makes the second issue moot.
FACTS
Shortly before 4 a.m. on October 26, 2000, the Kwik Shop on West Cloud Street in Salina was robbed. According to clerk Krystal Keefer, she saw a black man put his hand up to the glass of the front window and look inside. He then rushed in the front door with a gun. Several times the robber told her to hurry and at one point told her that he would shoot her or kill her if she did not go faster. She opened the cash drawer, grabbed the bills, and handed them to the robber. As she began to grab the change, the robber turned and ran out the front door to the east. The robber stole $100 to $102.
Beverly Rindt saw a small compact car that was white, gray, or silver in color pull up behind her van. After she was done bagging newspapers in her van, she turned to go to the Kwik Shop and saw a man leave the shop and run east toward the car. Eric Harper also saw a little white car and a Ford Ranger in the area at that time.
Surveillance cameras at the Kwik Shop captured video images of the robber. The man was wearing a blue bandana over his nose and mouth, blue denim shorts, a long-sleeved black or blue shirt, tennis shoes, and white socks. A photograph of the robber taken from the video was posted at the police station, and Lieutenant Christopher Trocheck believed the person shown to be Jami Swanigan.
Five days after the robbery, Shari Lanham, the lead investigator, accompanied another officer to Jessica Wegele's house, where Swanigan was staying. Lanham asked Swanigan if he would come to the police department to answer questions about this robbery and other recent convenience store robberies in Salina. He agreed and rode in a patrol car to the station. Upon his arrival, he was placed in a locked waiting room for 30 to 45 minutes before the interrogation began.
The interrogation lasted from 5:03 p.m. until 6:20 p.m., with all but the first few minutes recorded on audiotape. When it began, Lanham read Swanigan his Miranda rights, which Swanigan indicated he understood. Swanigan first denied knowing anything about the robberies, but eventually said he had heard Marcus Brown was involved. Lanham falsely told Swanigan that his fingerprints had been found at the scene. She also informed him that he had been caught on the surveillance camera. Swanigan had no explanation for either fact, except that he had possibly been at the store before.
After Swanigan took a bathroom break, Lieutenant Mike Sweeney, who was in charge of criminal investigations and who supervised Lanham, joined the interrogation. Swanigan gave Sweeney and Lanham several different stories, but each version contained facts that were contrary to what the officers knew from the eyewitnesses. When confronted with the discrepancies, Swanigan then denied any involvement in the robbery.
Investigator James Feldman then joined the interrogation. Right after Feldman's comments, Swanigan confessed to the robbery. When a discrepancy arose over the clothes the robber had worn, Feldman showed Swanigan a photo from the surveillance video. Swanigan immediately denied the photo was of him and denied that he had any involvement in the robbery. Based primarily upon his interrogation--since latent fingerprints taken from the store, including the front window, were found not to be his--he was arrested and charged with aggravated robbery. Swanigan also gave the police an oral statement the next day, November 1, in which he again not only confessed to the robbery, but also then began providing facts that the officers knew were untrue, so they ended the interrogation.
On January 5, 2001, Swanigan filed a motion to suppress his two statements. At the February 23, 2001, suppression hearing, the trial court denied the motion. The State introduced information from the statements into evidence at the jury trial where Swanigan was convicted of aggravated robbery. Based upon Swanigan's criminal history classification, the court sentenced him to 88 months in prison.
ANALYSIS
Issue 1: Did the trial court err in denying Swanigan's motion to suppress?
Voluntariness Determination
In Swanigan's motion to suppress, he alleged that his statements were not voluntary, knowing, or intelligent under the totality of the circumstances. Specifically, Swanigan alleged that the police used coercive and deceptive tactics, including providing him false information that his fingerprints matched those found at the crime scene and promising that his cooperation in the investigation would help him.
At the hearing, Lieutenant Sweeney and investigators Lanham and Feldman testified, as did Dr. Robert Schulman, a clinical psychologist who had evaluated Swanigan for the defense. Admitted into evidence was a photograph of the robber taken from the surveillance video, Dr. Schulman's report, and an audiotape of the October 31 police interrogation to which the trial court later listened. In later denying the motion, the court stated:
"Well, here's what I have to decide. I have to decide, regarding the voluntariness of statements, whether the State has proved by a preponderance of the evidence, considering the totality of the circumstances, whether Mr. Swanigan's statements were freely and voluntarily made. There's no question he was advised of his Miranda warnings. That's not an issue. He was. The Court listened to the tape. There were some allegations that Mr. Swanigan was misled by some of the officers indicating that they'd found fingerprints when, in fact, they had not, or at least that his matched fingerprints found when they were not. There was also the suggestion that, Mr. Swanigan, that your physical and psychological state was such that your will was overcome by police tactics. There was also an allegation made that you were promised leniency.
"I've listened -- I listened to the evidence on Friday. I listened to the tape. It is my thought that, considering the totality of the circumstances, the Court concludes that the State has proved by a preponderance of the evidence the statements should be admissible into evidence. Miranda warnings were given. Now, police interrogation is never pleasant. There's always, by the very nature of the police atmosphere, some coercive circumstances or atmosphere. That's the reason the Miranda warnings are given. They recognized that in Miranda that at least a subject should be told that they have a right to remain silent. Now, Mr. Swanigan could have exercised his right to remain silent any time. He could have asked for counsel. He did not.
"I listened to the officers on the tape, and I listened to them testify. There's no way in the world that anyone could conclude after listening to that tape that Officer Shari Lanham exercised undue coercion on Mr. Swanigan. At no time were voices raised. At no time were any threats uttered. On the whole, it seemed to be a pretty level interrogation. It lasted just a little over an hour. There were breaks taken. I can't see in these particular circumstances how anyone could look at that circumstance and say that Mr. Swanigan wasn't treated humanely. He was. I don't see any indication of out-of-bounds conduct by the police.
"Now, as far as the promises made, Mr. Swanigan was told several times that if he cooperated that that would be conveyed to anybody who might pursue the case. No specific promises of leniency were made. As a matter of fact, several times, the Court heard on the tape that Lieutenant Sweeney indicated that there couldn't be any promises made by those in authority. So, I think the conduct of the police is within bounds, and that's my decision on that.
. . . .
"I did -- I failed to mention that at the hearing the defendant called an expert witness, Dr. Robert Schulman, Ph.D., licensed clinical psychologist. In his report, in his testimony, he indicated that the clinical examination of Mr. Swanigan was within normal limits. He also concluded there's no indication of any underlying associative thought disorder. . . . The overall cognitive functioning, while low, is generally intact.
"It would seem to me that -- the Court considered that testimony. I found nothing there that would lead me to believe that Mr. Swanigan was of such a psychological state that it was improper for the police to interrogate and talk to him. And, by the way, there's no allegation the police induced to cause that psychological state. And, for all of these reasons, the Court believes simply that the State has proved by preponderance of the evidence that the statements of Mr. Swanigan on October 31st of the year 2000, and the next day, follow-up, should be admitted into evidence."
Our standard of review of the trial court's findings of fact and conclusions of law is well-known:
"In reviewing a district court's decision regarding suppression, this court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. [Citation omitted.] This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. [Citation omitted.]" State v. Mays, 277 Kan. 359, 372, 85 P.3d 1208 (2004).
We stated additional considerations specifically concerning confessions in State v. Sanders, 272 Kan. 445, 452, 33 P.3d 596 (2001), cert. denied 536 U.S.963 (2002):
"'"In determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible is on the prosecution, and the required proof is by a preponderance of the evidence. Factors bearing on the voluntariness of a statement by an accused include 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; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused."'" (quoting State v. Baston, 261 Kan. 100, 105, 928 P.2d 79 [1966]).
Similar to his position at the suppression hearing, Swanigan argues on appeal that his confession was involuntary, i.e., his will was overborne by the interrogators, primarily because of two of the specific circumstances identified in Sanders. First, he claims low intellect. Second, he claims the interrogating officers were unfair. In particular, he argues they lied that his fingerprints were found at the Kwik Shop. He also argues the officers were unfair because they told him that his cooperation, or lack thereof, would determine whether he was dealt with gently or harshly. According to Swanigan, if he failed to confess to the October 26 robbery, he not only could be charged in five convenience store robberies but also, upon the officers' recommendation, he would receive harsh treatment from the county attorney. In addition to Sanders, he cites an evidentiary statute, K.S.A. 2004 Supp. 60-460(f)(2)(B)(statement inadmissible when suspect induced to make it "by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same").
Under our standard of review, we first examine the evidence at the suppression hearing to determine if it is competent and substantial enough to support the trial court's findings. We begin with the fingerprints. The trial court stated: "There were some allegations that Mr. Swanigan was misled by some of the officers indicating that they'd found fingerprints when, in fact, they had not, or at least that his matched fingerprints found when they were not." However, outside of this statement, and a declaration that "the totality of the circumstances" were considered, it is unclear whether the court found the deception was actually performed by the officers or was merely alleged by Swanigan. As the following record excerpts reveal, the evidence clearly demonstrates the deception was performed.
When Lanham challenged Swanigan's assertion that he did not know anything else about the robberies, the following occurred:
"[Lanham:] Okay. I don't think you're being honest, Jami. As a matter of fact I know you're not being honest. You know how I know?
"[Swanigan]: How?
"[Lanham]: The lieutenant just told me that we have your fingerprints at the robbery. So you need to get it straight . . . ."
When asked at the suppression hearing why she told Swanigan his fingerprints were found at the scene, Lanham answered, "I suppose I said it so he would think that his fingerprints were there." When asked why she would want him to think that, Lanham replied, "So he would give me an admission."
The evidence is virtually undisputed that the officers repeated the fingerprint deception throughout the interrogation. Lieutenant Sweeney told Swanigan:
"Explain to me, I want you to give me a good reason why your fingerprints are on that window over there. I can't explain that why. That's one thing you cannot dispute. Have you heard about the forensics of fingerprints?
. . . .
"If I put my fingerprint right there, there isn't another person in the world that can prove that that would be the same fingerprint. So you go ahead and explain to me how your fingerprints got right there at that one exact spot where the clerk pointed out where you sat there and looked in the window.
. . . .
". . . I know you been there 'cause your fingerprint is on that window."
Later, when Swanigan said his fingerprint was there because he went to the store one day and put his hand on the window to see what was in the store, Sweeney replied:
"No. Because they pointed exactly where this was. There's only one spot that had fingerprints on. She goes, 'He looked through that window right there.' We look at the window, there's fingerprints on it. We dust the fingerprint. We compare it. Your name got brought up, we look at the picture. Yes, that is Jami. We go, we compare the fingerprint. It's Jami Swanigan. So what else do we need to do now?"
We next consider evidence at the suppression hearing concerning the officers' alleged promises, threats, or both. Regarding promises, the trial court found that "Swanigan was told several times that if he cooperated that that would be conveyed to anybody who might pursue the case." The court further found that although "[t]here was . . . an allegation made that you were promised leniency," that "[n]o specific promises of leniency were made," and that several times "Lieutenant Sweeney indicated that there couldn't be any promises made by those in authority." As shown below, substantial competent evidence supports these trial court findings.
Regarding threats, the trial court found: "At no time were any threats uttered." We agree no express threats were uttered, but find that evidence of implied threats exists on the audiotape. The implicit threats are occasionally intertwined with the officers' urgings that Swanigan cooperate. Examples from both categories of interrogation techniques are italicized below:
"[Lanham:] So you need to come clean. You know what's gonna happen after I get done talking with you Jami. I've gotta do a report. Right? You know that. That's all we do here is reports. And I need to go and put in my report that Jami cooperated. I need to be able to tell Parrish that you, that you cooperated with me and that you came clean and that you got it straight. And that you weren't involved in all of them because you know what Jami? I don't think you're involved in all of them. I think you had a small part in one of them, and that's what I want from you. That's what we need to know from you so that you don't go down for all these robberies. We just want to know your involvement in yours. That's all we want to know from you, so that you don't get charged with all of them. 'Cause I honestly don't think you're involved in all of them, Jami. And if these guys [apparently robbery suspects in an adjoining room] are saying that, I don't think that's right for you.
. . . .
"And if you come clean with me about your involvement, in whichever robbery it was, then that's gonna help you out a lot when it comes to court time. Because I can put it in my report that Jami cooperated with me, he understood what the circumstances were but he still told me the truth." (Emphasis added.)
Later in the interview Lanham said: "I just need you to tell me how you was involved. Jami, you know it's the right thing to do. It's gonna help you in the long run and you know it. 'Cause I guarantee there's a lot of difference between going to jail for five robberies than there is for one." (Emphasis added.)
When Sweeney asked Swanigan whether the county attorney knew him, Swanigan said yes, from car robberies in which he had been involved. Sweeney responded:
"[Sweeney:] Okay, but also, um, we're also, you know they've [county attorney's office] got several cases going through at one time, I mean, they uh, they come and go so what they have to do is base their opinion on what should they do on the reports that we write.
. . . .
". . . If you're willing to get it straightened out and tell it to me it was the other people involved or what you know, or maybe we can wheel and deal or whatever I don't know. I can't promise you anything. But what I'm trying to do is get the truth first.
. . . .
"So what do we need to do now? What we need to do is for Jami to start telling us the truth. Telling us what happened. Because we got Jami coming in, with a gun, robbing the place. We got it on film too.
"[Swanigan:] That's what . . . I don't know. I don't know what it is.
"[Sweeney:] Okay. Jami, we're going to charge you with aggravated robbery.
We're gonna show that you're not cooperating with us.
. . . .
"What I'm saying is that we can write the report where it shows that you're willing to get this straightened out, tell the complete truth.
"We're asking you do that please.
"If you don't want to . . . Don't mess with him any further. Just throw him in jail for aggravated robbery.
"[Swanigan:] I do not want to go to jail. I do not want to go to jail." (Emphasis added.)
Investigator Lanham also told Swanigan:
"I know you been listening to this room [presumably the adjoining room containing another suspect]. We have him gettin' it straight. He's in there cooperating. He's gonna help them find the evidence. And you know what? That's gonna help him in the long run. Absolutely is gonna help him in the long run. Because that investigator is gonna write his report and he's gonna say this person cooperated with me. He told me the story, he told me how it went down, he even showed me where the evidence was. And you know what? That is gonna help him. And this ain't gonna help you, what's going on in here, Jami." (Emphasis added.)
Finally, after Sweeney departed and Investigator Feldman entered the room, he told Swanigan:
"Jami, the best thing you can do right now . . . You're going to jail. It's guaranteed. You are going to jail. You got one of two options. You can sit there and B.S. and act like we're, we're idiots and tell these lame stories and we'll write every word you say down and send it over to the county attorney and you'll have every lawyer reading that going, 'Jesus Christ, this is bullshit!' And you know what they're [county attorney] gonna say? Well, when your lawyer comes up and goes, 'Hey, can we get a deal?' You know what they're gonna say? 'Read the report. He, he played games the whole time. He doesn't deserve a break. He hasn't learned from any of the mistakes he made.' Or you can go down and you can say, 'Here's what I did. I fucked up. I'm sorry about it. This is what happened. This is what I did. This is what I know.' And you know what they're [county attorney] gonna say? 'Maybe he's learning. Maybe he's becoming an adult. Maybe he deserves a chance.' But you're not gonna have that chance if you start B.S.ing and continue to play these stupid games. Why do you think you're down here Jami? We know you did it. We've got pictures. You're in those pictures . . . . Don't play games, you're screwed. It's . . . Jami, you're gonna have to learn, one time. You've gotta take responsibility for your actions. You can sit here and play your games all you want and you know where it's gonna end up. You're gonna end up back in prison. You've got one of two choices. Be a man and take responsibility and say, 'Hey, I'm sorry. I screwed up. I got in a bad spot. I needed some money. I needed whatever. But I made a mistake. I'm sorry about that.' Or you can say, 'I just stood outside and watched. I wouldn't do anything like that.' That's bullshit. What's it gonna be Jami? The ball's in your court. You already know you're going to jail.
"You can show that you made a mistake and you want to take responsibility for your actions and you apologize for it. Or you sit there and play stupid. And then you're gonna fry. Because when the county attorney comes to Sweeney or Lanham and goes, 'What do you think? Here's the deal [plea bargain] that I'm being offered.' You know what we're gonna say if you're playing games? 'Screw ya.'" (Emphasis added.)
Lanham then told Swanigan, "And if you don't think they [county attorney] ask our opinion you're crazy cause they do."
Immediately after these comments by officers Feldman and Lanham, the following exchange occurred:
"[Swanigan:] "Everything happened so fast. I was standing up at the window. I looked in, put my hand up on the window and looked in. I walked inside the store with a gun in my hand. And I pointed it at the um, clerk and asked, and tell him give me all your money. And he tried, you know, I kept on __ (unintelligible) __. I got real mad and said, 'Give me your money or I'll kill you.' So he finally gave me the money. I got out, ran, and jumped into a car and took off back to Marisha's house and we bought beer and all other things with that money and now that money has disappeared.
"F: How much did you get?
"S: About a hundred and something.
"L: Were you by yourself?
"S: Yes.
"F: Whose car?
"S: It was, um, ___ (unintelligible) ___ Marisha's car.
. . . .
"F: What kind of car is that?
"S: It's a, um, it's a Cavalier.
"F: What color?
"S: Dark blue.
"L: Where'd you park at?
"S: On the side of the street.
"L: What street, do you know?
"S: That street right beside Tally Ho [trailer park]. I'm like, I'm like . . .
"F: Okay. Here's, here's Kwik Shop, this is Kwik Shop, and these are, that's the one street and that's the one street over here, that's the trailer park, that's the trailer park.
"S: That's where I was at, the trailer park.
"F: Point out where.
"S: On this side.
"F: Okay. How did you come up with this idea?
"S: Because I needed, I needed some money. And I was dead broke.
"L: Where'd you get that gun?
"S: I got the gun from Marcus.
"L: Where's it at now?
"S: I don't know.
"F: What'd you do after the robbery with it?
"S: I gave it back to him.
"F: What kind of gun was it?
"S: It was like a um, .38, something like that.
"F: Semi-automatic, revolver or what?
"S: I think it was a revolver.
"F: Okay. Was it loaded?
"S: No, it wasn't.
"F: What were you wearing?
"S: I was wearing, I was wearing tan pants and, um, tan shirt that's over at Jessica's house.
"F: Over at Jessica's house? Where at Jessica's house?
"S: On Duvall.
"F: Where, where at?
"S: 676 Duvall.
"L: So that outfit that you have on, the other one. There's another outfit there just like this one you have on, right? That what you were wearing?
"S: Yeah.
"L: Really." (Emphasis added.)
In an apparent attempt to wrap up Swanigan's confession, Feldman produced a photograph of the robber from the surveillance video and asked, "That you?" Swanigan vehemently denied it: "Hell no! I can tell you that's not me. I can tell you that's not me." Among other things, Swanigan pointed out that the figure in the photograph was not wearing tan pants and a tan shirt, contrary to what he had just confessed.
From that point until the interrogation ended, Swanigan denied that he was involved in the robbery. When Lanham asked Swanigan how he would therefore know exactly how the robbery happened, he replied, "Because you guys done gave me tips behind how it done happened." When Lanham asked why he would make up the story that he committed the robbery when he actually had not, Swanigan responded, "Because you guys are forcing me to do this." When she denied forcing him into saying anything, he said, "When I try to tell you the truth you guys say it's me."
We next consider evidence at the suppression hearing concerning Swanigan's intellect and psychological state. The trial court found:
"In his report, in his testimony, [Dr. Schulman] indicated that the clinical examination of Mr. Swanigan was within normal limits. He also concluded there's no indication of any underlying associative thought disorder. . . . The overall cognitive functioning, while low, is generally intact.
". . . [T]he court considered that testimony. I found nothing there that would lead me to believe that Mr. Swanigan was of such a psychological state that it was improper for the police to interrogate and talk to him."
While substantial competent evidence exists in the record to support these findings, the finding about Swanigan's "psychological state" incorrectly frames the issue as dispositive, i.e., whether the police can or cannot interrogate him. Here, the issue inste