IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 95,095
STATE OF KANSAS,
Appellee,
v.
MICHAEL D. WALKER,
Appellant.
SYLLABUS BY THE COURT
1. In reviewing the trial court's denial of a criminal defendant's motion to suppress statements, this court determines, without reweighing the evidence, whether the facts underlying the trial court's decision were supported by substantial competent evidence. The trial court's legal conclusion drawn from those facts is reviewed de novo.
2. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.
3. In determining whether a confession is voluntary, a court is to look at the totality of the circumstances.
4. 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.
5. 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.
6. Factors to be considered in determining whether a confession is voluntary include: (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.
7. The exclusionary rule that prohibits the use of wrongfully obtained confessions also prohibits the use of any evidence obtained as a result of the wrongfully obtained statements under the fruit of the poisonous tree doctrine.
8. Evidence obtained unlawfully in violation of a defendant's constitutional rights is admissible under the inevitable discovery exception to the exclusionary rule where the prosecution can prove by a preponderance of the evidence that the unlawfully obtained evidence would have ultimately or inevitably been discovered by lawful means.
9. When a trial court refuses to recuse itself from a trial upon the defendant's request, a two-part test applies to determine whether the defendant received a fair trial or whether the defendant's due process rights were violated: (1) Did the trial judge have a duty to recuse himself or herself from this case because the judge was biased, prejudicial, or partial? (2) If the judge did have a duty to recuse and failed to do so, is there a showing of actual bias or prejudice to warrant setting aside the judgment of the trial court?
10. A judge has a duty to recuse himself or herself from a case in which the judge's impartiality might reasonably be questioned, including instances where the judge has a personal bias or prejudice concerning a party.
11. A judge should disqualify himself or herself if the circumstances and facts of the case create reasonable doubt concerning the judge's impartiality, not in the mind of the judge, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.
12. The term bias refers to the judge's mental attitude toward a party in the lawsuit. Bias and prejudice exist if a judge harbors a hostile feeling or spirit of ill will against one of the litigants, or undue friendship or favoritism toward one.
13. The issue of whether convictions violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights is a question of law subject to unlimited review.
14. Kansas appellate courts may consider an issue for the first time on appeal to serve the ends of justice or prevent denial of fundamental rights. A double jeopardy issue implicates a fundamental right of a defendant to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.
15. The Double Jeopardy Clause of the United States and Kansas Constitutions guarantee only the right not to be twice put in jeopardy for the same offense. The provisions permit a prosecution based upon the same acts but for different crimes if the legislature authorized the cumulative punishment.
16. If a legislature has explicitly authorized multiple punishments, the judicial inquiry is at an end; multiple punishments are authorized and proper.
17. When a double jeopardy claim arises from cumulative punishments imposed in one case, the overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition, are there two offenses or only one?
18. There are four nonexclusive factors to consider in determining whether convictions arise out of the same conduct and so violate the Double Jeopardy Clause: (1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.
19. If convictions are based on discrete conduct, i.e., committed separately and severally, there is no double jeopardy violation and the double jeopardy analysis ends. If the conduct is unitary, that is, it arises from the same conduct, the court must consider whether by statutory definition there are two offenses or only one.
20. In double jeopardy analysis, courts must discern whether the legislature authorized multiple punishments. As an aid to making this determination when the convictions are based on the same conduct, the court usually applies the same-elements test. Under the same-elements test, a court may examine whether the charges in the complaint or information under different statutes requires proof of an element not necessary to prove the other offense If so, the charges stemming from a single act do not violate the Double Jeopardy Clause.
21. The same-elements test for double jeopardy is a rule of statutory construction and is not a constitutional rule requiring courts to negate clearly expressed legislative intent. The rule is utilized to limit a court's power to impose convictions and punishment when the will of the legislature is not clear. Legislatures, not courts, prescribe the scope of punishments.
22. Through K.S.A. 2006 Supp. 21-3436(a), the Kansas Legislature expressed an intent that felony murder and any inherently dangerous felony listed in K.S.A. 2006 Supp. 21-3436(a) are separate offenses for which cumulative punishments may be imposed.
23. Double jeopardy does not attach to convictions under the felony-murder statute, K.S.A. 21-3401(b), and discharge of a firearm at an occupied dwelling, K.S.A. 2006 Supp. 21-4219(b), even if the charges arise from the same conduct.
24. Use of prior juvenile adjudications in a defendant's criminal history does not violate his or her constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
25. Whenever a defendant is sentenced to a presumptive sentence and there is no claim of error in regard to crime severity level or criminal history, there is a strong legislative presumption that the sentence is not the result of partiality, prejudice, oppression, or corrupt motive.
26. Whether a criminal sentence is illegal is a question of law over which an appellate court may properly exercise de novo review.
27. An appellate court has jurisdiction to determine whether a sentencing court erred in ranking the crime severity level of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.
28. Under K.S.A. 2006 Supp. 21-4720(b)(2), felony murder, as an off-grid crime, cannot be used as the primary crime in determining the base sentence when imposing multiple sentences under the Kansas Sentencing Guidelines Act.
29. Due process prevents increased sentences actually motivated by vindictive retaliation by the trial court upon resentencing. In order to assure the absence of such a motivation, whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.
Appeal from Sedgwick district court; DAVID W. KENNEDY, judge. Affirmed. Opinion filed March 23, 2007.
Carl F.A. Maughan, of Maughan Hitchcock LC, of Wichita, argued the cause and was on the brief for appellant.
Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion was delivered by
LUCKERT, J.: Michael Walker was convicted on retrial of first-degree felony murder and criminal discharge of a firearm at an occupied dwelling. The trial court imposed a life sentence on the felony-murder conviction, to be served consecutive to a 79-month sentence for the criminal discharge conviction.
Walker appeals, arguing: (1) the trial court erred in denying his motions to suppress all statements and evidence discovered as a result of the police officers' interrogation of him; (2) the trial court erred in denying his "Motion to Change Judge"; (3) the trial court improperly sentenced him for both felony murder and discharge of a firearm at an occupied dwelling; (4) the trial court erred by including his juvenile adjudications in the calculation of his criminal history; and (5) his sentence for criminal discharge of a weapon was illegal and the length of his sentence shows vindictiveness on the part of the judge.
We reject each of these arguments and affirm Walker's convictions and sentences.
Facts
Walker's convictions and sentences arose from a drive-by shooting in which 16-month-old Lexus Mathis was mortally shot in the abdomen as she slept on a couch in her family's living room. Three days after the shooting, Walker was interrogated by police regarding the shooting. After his admission that he had driven the vehicle from which shots were fired at the Mathis' home, Walker was charged with committing the crimes of felony murder and criminal discharge of a weapon. A jury convicted Walker as charged.
On direct appeal, this court reversed Walker's convictions after determining the trial court had improperly admitted into evidence statements made by Walker to police after Walker had clearly invoked his Fifth Amendment right to counsel during a custodial interrogation. State v. Walker, 276 Kan. 939, 80 P.3d 1132 (2003) (Walker I).
The case was remanded and Walker was tried a second time. He was again convicted of first-degree felony murder and criminal discharge of a firearm.
A detailed description of the facts related to the shooting and the investigation can be found in State v. Lowe, 276 Kan. 957, 80 P.3d 1156 (2003), in which this court affirmed the conviction of Walker's codefendant, Jermane Lowe. Highly summarized, the evidence at Walker's second trial established that Walker, Lowe, and others left a club at closing. The group dispersed in separate cars. While some of the group were driving around, another car approached and fired shots. In response, Lowe, Walker, and perhaps others decided to drive to the house of a rival gang member and fire gunshots at the home. One of these shots struck Lexus Mathis.
Substantial evidence linked Walker and Lowe to the drive-by shooting. Jendayi Maples told police she was talking to Walker on her cell phone around 3:50 a.m., the approximate time of the shooting. During the conversation she heard Walker talking to Lowe and heard Walker ask Lowe if he "got the Tec," a semiautomatic weapon. Maples heard "that's the house," a series of about nine gunshots, and a car speeding away. Then, the phone line went dead. Frightened, she immediately called Walker back on his cell phone. He assured her everything was fine but his ears were ringing from the shots. Cell phone records verified that the two were talking at the time Maples reported, which was also the time witnesses reported hearing the shots fired at the Mathis' home.
Also during the investigation, police found shell casings from three types of cartridges near the curb directly across from the house. The State argued to the jury that the location of the casings indicated that the car had come to a stop while shots were fired from three guns and then additional shots were fired while the car was moving away.
There was evidence that on the night of the shooting Lowe was driving a maroon 1989 Toyota Camry belonging to Scott Shaffer. When Walker returned the Camry to Shaffer, the windshield was damaged from projectiles and the trunk latch was broken. Shell casings were found in the car. Ballistics testing revealed that the casings found in the car were fired from the same gun as some of the shells found at the scene of the shooting. The State argued that the physical evidence of where the shell casings were located in the car supported a conclusion that the driver of the car had fired shots. Latent fingerprints in the car did not match Lowe's or Walker's.
In his defense, Walker presented the testimony of Lowe, who denied that Walker had been with him on the night of the shooting. Another witness testified that Lowe asked the witness to go with him. The witness described the car that Lowe was driving; the description did not match the description of the car which Walker had driven that night.
Issue 1: Did the Trial Court Err in Denying the Defendant's Motions to Suppress All Statements and Evidence Discovered as a Result of the Police Interrogation?
The police interrogation of Walker occurred at the Wichita Police Investigations Bureau. Walker came to the bureau voluntarily after hearing that police wanted to speak with him. Walker was advised of his Miranda rights, and Walker indicated that he understood and wished to waive those rights and speak to the police. He initialed and signed a Miranda waiver form. Several hours into the interview, Walker made inculpatory statements, admitting to driving the car involved in the shooting.
Sometime after making that statement, Walker said, "If I could talk to my grandma right now, I just need to talk to a lawyer, man – I can't wait till I go downstairs." In Walker I, this court held that the police were required to honor that request to speak to an attorney and should have stopped the interrogation. 276 Kan. at 953. Their failure to cease questioning required the suppression of all statements subsequent to Walker's request for counsel.
Upon retrial, the trial court followed the holding in Walker I by suppressing all statements made after Walker's request for counsel. However, Walker sought a broader order of suppression, arguing his statements were not voluntary but rather were elicited through coercive tactics. He also argued that because the detectives continued questioning him after he asserted his right to counsel, all evidence discovered as a direct result of the interrogation should have been excluded as "fruit of the poisonous tree."
Based upon the trial court's ruling that the statement was voluntary, the State, over defense counsel's objection, introduced into evidence a single statement from Walker's police interrogation: his admission to being the driver of the vehicle involved in the shooting. The statement was admitted through the testimony of Sergeant Alex Robinson. On cross-examination, the sergeant acknowledged that during the interview Walker also said he was not the driver.
In his motion to suppress before the retrial, Walker argued the statement was not voluntary, his right to remain silent had been violated, and, based upon the ruling in Walker I, other evidence had to be suppressed under the "fruit of the poisonous tree" doctrine.
On appeal, Walker mentions the violation of his right to remain silent but does not cite to the record or brief the argument. An issue not briefed by the appellant is deemed waived or abandoned. State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004). Walker does, however, argue the issues of voluntariness and the issue of whether evidence relating to Shaffer's car was fruit of the poisonous tree.
Standard of Review
In reviewing the trial court's denial of a criminal defendant's motion to suppress statements, this court determines, without reweighing the evidence, whether the facts underlying the trial court's decision were supported by substantial competent evidence. The trial court's legal conclusion drawn from those facts is reviewed de novo. State v. Rupnick, 280 Kan. 720, 727, 740, 125 P.3d 541 (2005); see also State v. Kirtdoll, 281 Kan. 1138, 1144, 136 P.3d 417 (2006).
Substantial evidence is "evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]" State v. Luna, 271 Kan. 573, 574-75, 24 P.3d 125 (2001).
Voluntariness
Walker takes issue with the police officers' interrogation techniques and the length of time he was kept in the interrogation room. See Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964) (coercion during an interrogation can be mental as well as physical). According to Walker, he was coerced in that he had little experience with interrogations, was isolated from outside help during this period of questioning, and was threatened by police.
The issue of voluntariness of the confession had been raised before Walker's first trial and was also raised on appeal in Walker I. After the Jackson v. Denno hearing in Walker I, the trial court made detailed findings on the record with regard to its conclusion that Walker's statements were voluntary. On appeal, the Walker I court did not reach the issue, leaving the question open for further argument and evidence. 276 Kan. at 953. On remand, no additional evidence was presented. Rather, the trial judge, who had presided over the first trial as well, considered the record from the evidentiary hearing on the initial motion to suppress. The trial court essentially referred to its ruling prior to Walker I as the "law of the case."
Considering the appellate argument in Walker I, this court summarized the evidence from the evidentiary hearing which served as the basis for the court's ruling, stating:
"The interview began at 9:15 a.m. with some general biographical questions. [Detective] Mumma advised Walker of his Miranda rights, and Walker indicated that he understood and wished to waive those rights and speak to the police. Walker initialed and signed a Miranda waiver form. Mumma stated that Walker had been questioned in previous criminal investigations and was well acquainted with the process, although Mumma had never personally read him a Miranda warning before.
"Mumma and Detective Gouge were initially with Walker for about 50 minutes, during which Walker denied any involvement with the shooting or any knowledge about what happened other than rumors. After the initial interview, Walker was left alone in the locked interview room for over an hour. Questioning was reinitiated after which Walker was again left alone in the interview room. Detectives again returned and, after some additional questioning, placed Walker under arrest and handcuffed Walker to the table in the interview room. The arrest occurred at 1:38 p.m., slightly more than 4 hours after the interview began. The detectives again left Walker alone. He started yelling and banging on the table, wanting someone to stay with him. Various officers came and went. Whenever he was left alone in the room, Walker would yell and bang on the table. At around 4:14 p.m., an officer shackled Walker's foot to the table. Except for escorted restroom breaks, Walker was in the same interview room until 10:10 p.m., almost 13 hours after the interview began. He was not allowed to talk to his father [who had brought him to the bureau and was in the reception area] or other family members.
"Over the 13 hours, 10 Wichita police officers had contact with Walker, at least 5 of whom asked questions related to the investigation: Mumma, Gouge, Espinoza, Robinson, and Landwehr. Various techniques were employed to encourage Walker to talk." 276 Kan. at 941-42.
The transcript of the interview is a part of the record before us.
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. 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. State v. Gonzalez, 282 Kan. 73, 103, 145 P.3d 18 (2006). Although we have repeatedly indicated that there are a number of factors to be considered when determining if a statement was voluntary and we have often enumerated those factors, we have not always done so in a consistent manner. Compare Gonzalez, 282 Kan. at 103 (listing five factors for consideration) with State v. Harris, 279 Kan. 163, 167, 105 P.3d 1258 (2005) (listing four factors) with State v. Nguyen, 281 Kan. 702, 725, 133 P.3d 1259 (2006) (adding English fluency to list of four factors). Combining these considerations, the factors to be considered when determining if a statement is voluntary are: (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.
Mental State. The defendant in this case did not present any evidence regarding his mental state and, other than pointing to his level of agitation as a sign of coercion, does not argue this factor.
Duration and Manner. Walker complains about the length of time he was interrogated. He was in the interview room for almost 13 hours; Walker confessed to involvement in the crime after about 8 hours. It was shortly after this statement that Walker asked for an attorney and the interview should have ended. As a result, the admissible portion of the interview lasted approximately 8 hours. Walker was given numerous restroom breaks, was given food and drinks, and was permitted to smoke.
Although the interrogation spanned a substantial period of time, we have found statements voluntary when similar lengths of time were involved. See State v. Ackward, 281 Kan. 2, 128 P.3d 382 (2006) (upholding statements as voluntary where defendant's interrogation lasted 8 or 9 hours).
Outside Contact. Next, Walker complains he was denied contact with the outside world. The trial court agreed, finding there was "no question about that." Walker contends he made 17 requests to contact family members about his arrest during the course of the police interrogation. He fails, however, to discuss or identify the specific instances of which he complains, and we cannot reconcile his count with the record. As the State acknowledges in its brief, the transcript of Walker's interrogation shows at least four instances, before invoking his right to counsel, where Walker requested to speak with a family member and was denied the opportunity to do so.
Toward the beginning of the interrogation, Walker asked to speak with his father who was in the waiting area at the bureau, and Detective Gouge told Walker he could not do so at that time. Then, just before Gouge left the interrogation room, Walker asked whether he could go sit in the waiting area and go talk to his father. After Gouge told Walker he would see if they could arrange for him to speak with his father, Walker expressed the fact that he did not want to be alone in the interrogation room. Later, well after Walker had been arrested, he asked Detective Gouge if he could call his grandmother, and the detective did not permit this. In addition, Walker eventually asked Sergeant Robinson to speak with his grandmother about hiring an attorney. At other times, Walker asked whether police had talked to his father or called his grandmother; however, these inquiries were not requests for Walker to make contact.
While isolation from the outside world can be a factor in making an interrogation coercive, it is to be expected that police will take steps to limit the ability of potential witnesses and suspects to communicate and, potentially, conspire during an investigation. It must be recognized that such communications can occur through intermediaries such as family members. In this case, police had told Walker they were talking to other witnesses, including Maples and Lowe, while they were talking to him. At one point, he asked what Lowe had said. When they refused to tell him, he immediately asked if he could speak to his father. The timing of the request suggests his motivation for seeking outside contact was to gather information and, in turn, explains the police officers' reluctance to grant his request.
Refusal of such a request is not per se coercive. And, in this case, neither the number of requests, the context in which they were made, nor the police officers' responses made Walker's inability to communicate coercive.
Age, Intellect, and Background. The evidence established that Walker was 20 years old and previously had been interrogated and Mirandized by officers. There was no evidence regarding Walker's intellect. The trial court found that Walker seemed to "fall in the average range of intelligence." We see nothing that makes us conclude otherwise.
Indeed, a review of the interview transcript reveals Walker carried on intelligent conversations with the officers.
Fairness of the Officers. Most of Walker's arguments relate to the factor of fairness of the officers. He argues the police tactics were coercive because the police threatened him with harsher penalties if he did not cooperate. See State v. McCarther, 197 Kan. 279, Syl. ¶ 4, 416 P.2d 290 (1966) (confession inadmissible when elicited by force or threats). The trial court found that law enforcement neither coerced Walker nor made him any promises.
To support his contention regarding police threats, Walker specifically cites a colloquy between Lieutenant Landwehr and Walker where they discussed Maples' allegations that she heard gunshots when she talked to Walker on his cell phone on the night of the incident:
"[Landwehr]: So, . . . what's the gunfire coming over that phone?
"[Defendant]: The bitch. I swear man, for all it could have been a f–ing song that was on the radio or something.
"[Landwehr]: Wrong. You stick to that story and you can get out in about 45 to 50 years and you can still stick to that story.
"[Defendant]: S–t! I'm gonna stick to it and never change.
"[Landwehr]: . . . but right now . . .
"[Defendant]: ..it. (pounding noise) take me (pounding noises) across (pounding noises) the (pounding noises) street (pounding noises) man.
"[Landwehr]: Sit down. . . if they . . .
"[Defendant]: I'm gonna . . .
"[Landwehr]: . . . have to tell you again . . . then you're gonna get hurt . . . do you understand?
"[Defendant]: Y'all gonna beat me up?
"[Landwehr]: I didn't say that. I said don't bang on the table. . . act like a man. You're under arrest.
"[Defendant]: For what?
"[Landwehr]: Murder. Do you understand that? You're under arrest for murder." (Emphasis added.)
In context, it is clear that the comment about being hurt was not a threat but, rather, concern that Walker would hurt himself. Clearly, though, as Walker argues, the statement regarding 45 to 50 years was a reference to the amount of time Walker could spend in prison. Walker further argues that another officer, Sergeant Robinson, coerced him into making an incriminating statement by threatening Walker with 50 years in prison. Robinson came to the interrogation room because Walker asked to talk to him several hours into the interview. Walker explained that he knew Robinson from when he was younger and Robinson "stay[ed] on my case." A review of the interrogation transcript shows it was Walker who first mentioned to Robinson that "they gonna give me 50." Robinson responded: "I don't know what they gonna do. That's not left up to the Police, that's left up to the courts . . . and the jury." Then, in urging Walker to tell him what happened on the night of the shooting, Robinson made numerous statements like, "Mike, you can't go to jail for 50 years for [something] you didn't do," and, "You can't go to jail for 50 years . . . even 5 years . . . for [something] you didn't do."
Although Robinson periodically played on the fact that Walker was scared of going to jail for 50 years, he did indicate that the length of jail time would be decided by the courts. In fact, just before his inculpatory statement, Detective Robinson advised Walker: "[Y]ou know they [booking officers] gotta talk to the DA's office, I'm not here to promise you what they'll do, or what they can or can't do. I don't want to fill your head up with something that ain't gonna