IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 80,320
STATE OF KANSAS,
Appellee,
v.
JASON M. WAKEFIELD,
Appellant.
SYLLABUS BY THE COURT
1. When the sufficiency of the evidence is challenged, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
2. It is well established in Kansas law that the mere presence of an accused at the time and place of the crime alleged is not sufficient to make the accused guilty of the crime, but if from the facts and circumstances surrounding the defendant's presence at the time it appears that the defendant's presence did in fact encourage someone else to commit the criminal act, guilt may be inferred.
3. In the absence of anything in a person's conduct showing a design to encourage, incite, aid, abet, or assist in the crime, the trier of the facts may consider failure of such person to oppose the commission of the crime in connection with other circumstances and conclude therefrom that the person assented to the commission of the crime, lent his or her countenance and approval thereto, and thereby aided and abetted the commission of the crime.
4. K.S.A. 1998 Supp. 22-2901(1) provides, in part, that when an arrest is made in the county where the crime charged is alleged to have been committed, the person arrested shall be taken without unnecessary delay before the nearest magistrate and a complaint shall be filed forthwith. The statute provides no sanctions in the event there is unnecessary delay in taking a person under arrest before the nearest available magistrate.
5. The purpose of the initial appearance of an accused before a magistrate after an arrest is to safeguard individual rights without hampering effective and intelligent law enforcement. The purpose of the rule is to abolish unlawful detention that provides an opportunity for improper pressure by the police before the arrestee has been informed of his or her rights. It is designed to reduce the opportunity for third-degree practices by the police and to protect the rights of the accused by making certain that he or she is advised of constitutional rights by a judicial officer.
6. An unwarranted delay in taking the accused before a magistrate after he or she has been arrested is not in itself a denial of due process unless it has in some way prejudiced the right of the accused to a fair trial. Whether a delay is prejudicial depends on the facts and circumstances of the case.
7. 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.
8. It is constitutionally required that a search warrant shall particularly describe the place to be searched. A search warrant directed against a multiple occupancy structure generally will be held invalid if it fails to describe the particular room or subunit to be searched with sufficient definiteness to preclude a search of other units.
9. A trial court's denial of a motion to suppress evidence will be upheld on review if supported by substantial competent evidence. When reviewing a decision on a motion to suppress, the appellate court gives great deference to the trial court's factual findings, though the ultimate determination of the suppression of the evidence is a legal question requiring independent appellate determination.
10. The rule in Kansas is that absent a stipulation of the parties, the results of a polygraph examination are too unreliable to be admissible at trial. The prohibition is based on the reliability of the results to accurately measure truthfulness or deceptiveness and the unique role of the jury as the truthfinder in court.
11. Any person who counsels, aids, or abets in the commission of any offense may be charged, tried, convicted, and sentenced in the same manner as if he or she were a principal.
Appeal from Sedgwick district court; REBECCA L. PILSHAW, judge. Opinion filed April 16, 1999. Affirmed.
Richard Ney, of Law Offices of Richard Ney, of Wichita, argued the cause and was on the briefs for appellant.
Debra S. Peterson, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
LOCKETT, J.: Defendant appeals his convictions of premeditated murder, felony murder, aggravated burglary, and felony theft and the trial court's imposition of the hard 40 sentence. Defendant claims the evidence was insufficient to convict for first-degree premeditated murder, his statements to the police should have been suppressed, failure to suppress evidence seized from his residence was error, his warrantless arrest was improper, the court's failure to admit polygraph evidence was error, his sentence for premeditated murder was illegal, and the trial court erred in imposing the hard 40 sentence.
On September 13, 1996, at approximately 7 a.m., Sedgwick County deputy sheriff officers Phillip Gleason and Gary Henderson, were dispatched to a residence in a rural area of Wichita. The dispatcher advised that a 911 caller had reported two dead bodies at the residence.
As officers approached the house, they noted that the back door was open, the kitchen had been ransacked, and the lights did not work. When Officer Gleason called out to identify himself as a police officer, there was no response. The officers walked through the first floor of the residence noting the disarray and other evidence of a burglary. When Officer Gleason reached the stairway to the second floor, he again called out to identify himself. A small child answered from upstairs.
Two children came down the stairs, a boy and a girl, around 4 and 6 years of age. When Officer Gleason asked the boy where his parents were, the child responded, "They're upstairs in the bedroom. They're dead." Their 9-year-old sister had gone to a neighbor's house to call 911. An officer took the children outside the residence to a place of safety.
Officers Gleason and Henderson went up the stairs to the second floor. The officers entered the master bedroom and found the bodies of a man and a woman lying under the covers in the bed. The victims, later identified as Doug and Beth Brittain, had each been shot in the face.
The officers secured the crime scene. In the kitchen, Officer Gleason found a .22 caliber sawed-off rifle on the kitchen counter which contained one live round in the chamber, but the gun was not operational. In the backyard of the residence, the officers found a purse containing a driver's license issued to Beth Brittain. Subsequent investigation revealed that some of the electric breaker switches had been pulled shutting off electricity to parts of the house. Numerous items taken from the Brittain home included televisions, a suitcase, stereo boom box, carrying case, VCR, vacuum sweeper, stereo, and several guns.
The day after the murders, police officers made a routine traffic stop of a car in which Gavin Scott was a passenger. Noting the suspicious behavior of the occupants in the car, the officers obtained the driver's consent to search the car.
In the search of the car, the officers found a magazine clip and a Raven .25 semiautomatic pistol near where Scott had been sitting. The officers arrested Scott for possession of a firearm after a felony conviction. Further investigation revealed that the Raven was one of several guns stolen in the burglary of the Brittain residence. When questioned by officers, Scott confessed to being a participant in the burglary. Scott was later charged with aggravated burglary and felony theft, two counts of premeditated first-degree murder, and possession of a firearm after a felony conviction.
Based on information known to the officers, a search warrant was obtained for 1638 N. Woodlawn, Wichita, Kansas, the property where Scott and several others lived. The property included a primary residence, 1638 N. Woodlawn, and a smaller secondary residence, 1636 N. Woodlawn, which was attached to the primary residence at the roof line. The defendant, Jason Wakefield, lived in the secondary residence.
When the officers executed the search warrant at 7 a.m. on September 17, 1996, Wakefield was found hiding in the attic of the secondary residence. Wakefield was arrested and taken to jail. Items seized in executing the search included: ammunition, a 9mm Beretta handgun, television, VCR, video camera, vacuum sweeper, wallet, and stereo.
After Wakefield's arrest in the early morning hours of September 17, 1996, and before his first appearance on the afternoon of September 19, 1996, he gave three videotaped statements to law enforcement officers. On September 19, 1996, Wakefield was charged with aggravated burglary, two counts of premeditated first-degree murder, and one count of felony theft.
Upon motion of the State, Wakefield's and Scott's trials were severed. Prior to trial, Wakefield filed a motion to suppress the evidence seized during the execution of the search warrant at his residence, a motion to suppress statements elicited from him following his arrest, a motion to quash his arrest and suppress evidence obtained as a result of the arrest, and a motion to admit the results of polygraph tests which the sheriff's officers administered to him during their investigation of the crimes. Hearings were held on Wakefield's motions on April 23 and 25, 1997. The trial court denied each motion.
The jury trial commenced on April 28, 1997. The jury convicted Wakefield of one count of felony theft, two counts of premeditated murder, two counts of felony murder, two counts of first-degree murder on the combined theories of premeditated murder and felony murder, and one count of aggravated burglary. Wakefield was sentenced to two consecutive terms of hard 40 life imprisonment for the two counts of premeditated murder, one concurrent term of 34 months for the aggravated burglary conviction, and a concurrent term of 7 months for the felony theft conviction. Wakefield appeals his convictions and sentence. The appeal is before this court pursuant to K.S.A. 21-4627.
SUFFICIENCY OF THE EVIDENCE
Wakefield concedes that he willingly participated in the aggravated burglary of the Brittain home and that the Brittains died during the course of that burglary. He asserts, however, that the evidence was not sufficient to establish that he participated in the homicide of the Brittains.
When the sufficiency of the evidence is challenged, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Claiborne, 262 Kan. 416, 425, 940 P.2d 27 (1997).
Wakefield did not testify at trial. His theory of defense was that although he participated in the burglary, Gavin Scott was solely responsible for killing the Brittains. Wakefield claims that after Scott killed the Brittains, it was Scott's threats with a gun that forced him to take the Brittains' belongings. In fact, argues Wakefield, the evidence at trial shows that when Scott expressed an intention to kill the Brittain children, Wakefield talked Scott out of it.
The State points out that it prosecuted Wakefield on the theory he aided and abetted Scott in the premeditated murders. The State contends that from the evidence presented at trial, a rational factfinder could have found Wakefield aided and abetted in the crimes of premeditated murder.
It is well established in Kansas law that the mere presence of an accused at the time and place of the crime alleged is not sufficient to make the accused guilty of the crime, but if from the facts and circumstances surrounding the defendant's presence at the time and from the defendant's conduct it appears that the defendant's presence did in fact encourage someone else to commit the criminal act, guilt may be inferred. State v. Smolin, 221 Kan. 149, 153, 557 P.2d 1241 (1976). In the absence of anything in a person's conduct showing a design to encourage, incite, aid, abet, or assist in the crime, the trier of the facts may consider failure of such person to oppose the commission of the crime in connection with other circumstances and conclude therefrom that the person assented to the commission of the crime, lent his or her countenance and approval thereto, and thereby aided and abetted the commission of the crime. 221 Kan. at 153.
Wakefield's videotaped statements to the sheriff's officers were played for the jury. Regarding Wakefield's participation in the killings, the following exchange occurred during Wakefield's third interview:
"[OFFICER]: . . . Okay, at any time that you were in the house, did [Scott] encourage you or try to get you to shoot those people?
. . . .
"WAKEFIELD: He sa, he said, do you want to take care of them? I said, I ain't doing that shit.
"[OFFICER]: Okay, was this when you were downstairs?
"WAKEFIELD: Uh-huh
"[OFFICER]: Okay, so there was some talk downstairs about, about doing them before you went upstairs.
"WAKEFIELD: Uh-huh. I said, man, I said, we don't even need to do that. I said, they all asleep.
"[OFFICER]: Okay, why, why was he wanting to shoot them?
"WAKEFIELD: I don't know, he didn't tell me.
"[OFFICER]: Okay.
"WAKEFIELD: Didn't tell me nothing about them, I didn't, he didn't tell me nothing about knowing them, he didn't tell me shit about nothing like that.
"[OFFICER]: Okay, but you guys are downstairs and he says, do you want to do them or do you want me to.
"WAKEFIELD: Hm, and I said, man, we don't even need to do it, cause they asleep (inaudible).
"[OFFICER]: So you weren't surprised when you walked upstairs and he's got the rifle.
"WAKEFIELD: I'm surprised, cause like I said, man, they was asleep. I told him we didn't need to do no shit like that.
"[OFFICER]: But he talked about it before when you were downstairs.
"WAKEFIELD: He just asked me if I wanted to do it.
"[OFFICER]: Okay, did he, did he get upset with you? Uh, okay, reason I'm asking is there's been some comments made by some people that he called you a pussy cause you wouldn't do it and,
"WAKEFIELD: No, no,
"[OFFICER]: just kinda ragging on you.
"WAKEFIELD: he was just like, fine, whatever and everything like that, and I was like, I said, man, I said man, shit you don't even gotta do that. I said, they all asleep. I said, anything that you want that we need is right here. I said, man, there's a TV, you know, VCR, stereo, you know, shit, (inaudible) happy with that shit.
"[OFFICER]: But he says to you, so you want to do, did he say, do you want to do them or do you want me to or did he just say, do you want to.
"WAKEFIELD: He said, he said, you want to do them? I said, man, we don't need to.
"[OFFICER]: But you knew what he meant.
"WAKEFIELD: Yeah. Do them is (inaudible)."
Wakefield then said that Scott went up the stairs and shot the Brittains in their bed. According to Wakefield, he did not wish to kill the Brittains because he did not think that their deaths were necessary to the commission of the burglary.
When Scott went up the stairs with the stated purpose of killing the Brittains, Wakefield acquiesced in that decision and continued to load the Brittains' belongings into the truck. Wakefield's willing and intentional participation in the aggravated burglary, his failure to oppose Scott's premeditated killing, and his own criminal activity in the burglary after the killing of the Brittains were sufficient evidence from which the jury could conclude that Wakefield aided and abetted the premeditated killing of Doug and Beth Brittain.
FAILURE TO SUPPRESS STATEMENTS
Wakefield was arrested at 7:30 a.m. on September 17, 1996. He was brought before the magistrate for his first appearance the afternoon of September 19, 1996. During the period between his arrest and his first appearance, Wakefield gave three statements where he progressively admitted participation in the crimes. During the interviews, the officers repeatedly told Wakefield they were attempting to help him and encouraged Wakefield to cooperate in the investigation. They falsely represented to Wakefield that they had information and evidence implicating Wakefield in the murder.
Wakefield contends that the trial court erred in refusing to suppress the statements in the interviews conducted during a period of unnecessary and intentional delay in bringing him before the court for first appearance. Wakefield asserts that if he had been brought before the court for first appearance without delay, he would have been appointed an attorney to protect his interests and would not have made the admissions which resulted in his conviction.
Unnecessary Delay
K.S.A. 1998 Supp. 22-2901(1) provides, in part, that when an arrest is made in the county where the crime charged is alleged to have been committed, the person arrested shall be taken without unnecessary delay before the nearest magistrate and a complaint shall be filed forthwith. The statute provides no sanctions in the event there is unnecessary delay in taking a person under arrest before the nearest available magistrate. Therefore, the first consideration in determining the effect of a delay in bringing an accused before the court for first appearance is whether the delay was unnecessary.
The purpose of the first appearance is to safeguard individual rights. K.S.A. 1998 Supp. 22-2901(1) was enacted to abolish unlawful detention that provides an opportunity for improper pressure by the police before the arrestee has been informed of his or her rights. It is designed to reduce the opportunity for third-degree practices by the police and to protect the rights of the accused by making certain that he or she is advised of constitutional rights by a judicial officer without hampering effective and intelligent law enforcement. State v. Crouch & Reeder, 230 Kan. 783, 785-86, 641 P.2d 394 (1982).
Wakefield urges this court to adopt the federal McNabb-Mallory rule which provides that in federal cases, incriminating statements are not admissible in evidence where they have been elicited from an accused during a period of illegal detention, in violation of Rule 5(a) of the Federal Rules of Criminal Procedure. See Mallory v. United States, 354 U.S. 449, 1 L. Ed. 2d 1479, 77 S. Ct. 1356 (1957); McNabb v. United States, 318 U.S. 332, 87 L. Ed. 819, 63 S. Ct. 608 (1943). This court has previously held that the McNabb-Mallory rule is not applicable to Kansas cases. State v. Stubbs, 195 Kan. 396, 407 P.2d 215 (1965).
On September 18, 1996, the day after Wakefield was arrested, an assistant district attorney requested the judge to find that postponing Wakefield's first appearance an additional day was a delay necessary to the investigation. The assistant district attorney had not at that time decided whether to file death penalty charges against Wakefield. The assistant district attorney explained that before making that determination there were multiple crime scenes to process, witnesses to interview, and evidence to inventory. The assistant district attorney informed the judge that because there was a potential for charging capital murder, it was important to fully investigate the crimes before filing charges. The assistant district attorney explained:
"Your Honor, in fact, for your information, we talked with [the capital defender] this morning; and he . . . indicated the desire to represent the one who was more culpable, I guess more likely to go to trial or whatever. And in further talking with [the capital defender] we got the impression . . . that if we can determine who the alleged shooter is, if there is in fact only one, it is likely they would prefer to have that person. That is one of the issues we still are examining, which--if not both--which one would, if we can determine that.
"Then the other thing is he notified us there were two other people--they offered names--who they would prefer to have represent the other person--I believe that's Mr. Ney and Mr. Rathbun--and we told them we would get back with them. But, at this point, there's no way we can answer the questions they were asking."
The judge agreed that, in the interest of avoiding attorney conflicts, it was important for the prosecutor to ascertain whether to charge Scott or Wakefield as the more culpable actor in the crime.
Clearly, Wakefield was not taken for first appearance without delay. However, when considering the circumstances of this case, and the potential conflicts in appointing the capital defender, that delay was necessary. The next question is whether, during the period of necessary delay, Wakefield was subjected to coercive law enforcement questioning.
Wakefield's Statements
Even an unwarranted delay in taking the accused before a magistrate after he or she has been arrested is not in itself a denial of due process unless that delay has in some way prejudiced the right of the accused to a fair trial. Whether a delay is prejudicial depends on the facts and circumstances of the case. See State v. Goodseal, 220 Kan. 487, 500, 553 P.2d 279 (1976).
The relevant question is, during the delay in the first appearance and appointing counsel, were the statements of the accused compelled by pressure or threats? At the conclusion of the hearing, the district judge stated:
"It's clear that to me that [Wakefield] was afforded many opportunities for breaks, refreshments, opportunities to use the restroom, things like that; so there is nothing overt about the length of time that he was held or the length of time of the questioning process that would lead me to believe that wore down Mr. Wakefield to the degree that his statement or his waiver and his statements were not knowing and voluntarily--knowingly, voluntarily, and intelligently made.
"Furthermore, the only--and I'll just cut to the chase. The only circumstances that could give rise to the proposition that it was not a knowing, voluntary, and intelligent waiver are just those that Mr. Ney has addressed: the statements made by the police officers, sheriff's officers. For example, Detective Lathrop's saying they're trying to help you. The lies that were told by Detective Oliver and Detective Lathrop, do these amount to a level--a sufficient level that makes an otherwise valid confession inadmissible in that it is likely to produce a false or untrustworthy confession? The bottom line here is that trickery, deceit, manipulation, et cetera, can all be effective tools of law enforcement so then--so long as these statements and tools do not cross the law. I don't see any false promises that were made; and, in fact, I would have to say that perhaps Mr. Wakefield has benefitted at least in the charges that have been brought against him by his cooperation and talking with the police or with the sheriff's office.
"And regarding comments or statements or lies made, for example, by Detective Oliver that there were fingerprints upstairs that weren't there or there were people who would testify, while they are not true--which makes them, of course, lies--I see them more as bluffs that were effectively used to convince Mr. Wakefield to make certain statements to them in response, and they worked. I mean, police officers lie every day. Narcotics officers, their physical appearance is in and of itself a lie. It's something that is a necessary tool, and so long as the officers don't cross the line, it is effective and legal; and I am finding that there is nothing insofar as those methods that were used that makes these statements involuntary."
When a trial court conducts a full hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, an appellate court accepts that determination if it is supported by substantial competent evidence. State v. Lewis, 258 Kan. 24, 36, 899 P.2d 1027 (1995).
When determining the voluntariness of a confession, one views the totality of the circumstances, including: (1) the duration and manner of interrogation; (2) the accused's ability upon request to communicate with the outside world; (3) the accused's age, intellect, and background; and (4) the fairness of the officers in conducting the interrogation. State v. Alexander, 240 Kan. 273, 282, 729 P.2d 1126 (1986).
First, Wakefield asserts that his confession was involuntary because he was isolated from outside help during this period. Wakefield's assertion is not born out in the record, as the following excerpt from the second interview reveals:
"WAKEFIELD: Um, I was wondering um, I'm uh, I was wanting to know if I was able to try to get a hold of someone so they could go and get all my property from the house, my clothes and shit.
"[OFFICER]: Don't they, don't you have phone privileges over there?
"WAKEFIELD: Yeah, I do, but, what I'm saying, am, am I able to have someone go over there and get that.
"[OFFICER]: Who, who, who can we get hold of?
"WAKEFIELD: Well, I was gonna try, well, I was gonna try to get a hold of my girlfriend's mom. I've got my uh, sister, uh, my sister's coming over tomorrow for a visit and then I'm having, I'm gonna have either, either have her go and get it or have her go to my girlfriend's mom's house and ask her to go get it.
"[OFFICER]: Okay.
. . . .
"WAKEFIELD: Just like my clothes and my change and shit, that way I can have some.
"[OFFICER]: Let us take a break here, we'll talk about, uh, I'm sure that we can help you do something as far as getting a hold of somebody.
"WAKEFIELD: Can I go to the bathroom?
"[OFFICER]: Yeah, if you need to go right now? I'll go with you . . . ."
The videotaped interview shows that Wakefield had telephone privileges and visiting hours. He was not isolated from the outside world.
Regarding the officers' fairness in misrepresenting their motivations and the evidence against Wakefield, the officers' conduct was clearly in the interest of the State in conducting a thorough and accurate investigation in the homicides and burglary. Such tactics by the officers do not make a confession involuntary so long as the defendant's statements were the product of his or her free and independent will. State v. Graham, 244 Kan. 194, 203, 768 P.2d 259 (1989).
In State v. Kornstett, 62 Kan. 221, 61 Pac. 805 (1900), a sheriff told the suspect he believed the suspect knew who had committed the murder and would feel better if he told the truth. The Kornstett court stated mere advice or an admonition to the defendant to tell the truth, which is neither a threat nor a promise of a benefit, does not render a confession inadmissible. 62 Kan. at 227.
In State v. Ninci, 262 Kan. 21, 39, 936 P.2d 1364 (1997), interrogating officers told Ninci "'now is the time to come clean'" and "'you can do some things to help yourself now.'" When Ninci indicated he was very scared of the codefendant and feared for his life, the officers told Ninci that the codefendant "'knows you know too much, we can help you on that, but it has to be a two way street. We are willing to do what we can to keep you safe, but we can't do it unless we know exactly what is going on.'" 262 Kan. at 39. Ninci was told that if he did not cooperate, then the officers really did not care what happened to him. According to Ninci, the officers indicated that it would help him if he confessed. This court upheld the trial court's denial of Ninci's motion to suppress, stating:
"'"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."' [Citation omitted.]" 262 Kan. at 39.
In Frazier v. Cupp, 394 U.S. 731, 22 L. Ed. 2d 684, 89 S. Ct. 1420 (1969), the questioning officer falsely told the defendant that the defendant's cousin had been brought in and confessed. The Court stated that while the misrepresentation made by the police was relevant, after viewing the totality of the circumstances, it was insufficient to make the otherwise voluntary confession inadmissible. 394 U.S. at 739.
Was Wakefield's will overborne at the time he confessed? Wakefield does not allege that the sheriff's officers threatened him or that the officers made him any unfulfilled promises. Therefore, after reviewing the totality of the circumstances, the district court correctly determined that the misrepresentations made to Wakefield by the officers during the interviews did not cause Wakefield's confession to be involuntary. See Lynumn v. Illinois, 372 U.S. 528, 534, 9 L. Ed. 2d 922, 83 S. Ct. 917 (1963).
SEARCH WARRANT
During the relevant time period, Wakefield lived in a small residence attached to a larger residence on N. Woodland. The house number of the larger residence was 1638. Although the post office recognized the 1636 residence as a separate address, there was no number on 1636. The mailbox for 1636 was attached to 1638, next to 1638's mailbox. The 1636 residence was a converted garage and was located toward the rear of the 1638 residence. Each unit in the complex had its own kitchen and bathroom facilities. Scott and several of Wakefield's friends lived in the 1638 residence. Wakefield lived in the 1636 structure. The 1636/1638 complex was owned by one landlord and rented in one contract.
The search warrant issued for the search of the complex contained the following:
"When Scott was arrested, he was a passenger in a vehicle driven by Robert C. Wilson. In the interview, Wilson stated