*1 71,817 No. Appellant. Appellee, Kansas, v. Bob
State (904 962) P.2d filed
Opinion 27, 1995. October Cornwell, Edmonds, Wichita, Carl E. of Cornwell & the cause and argued
Keith C. of Kansas was with him on the for brief Sevedge, City, appellant. Gorman, cause, A. assistant district the and Nick A. attorney, argued Jerome Tomasic, Stovall, district and Carla were with him attorney, attorney general, J. on the brief for appellee. The of the court was delivered opinion by This is a direct criminal from convictions appeal jury Davis, J.: of defendant, murder and Bob first-degree aggravated battery. raises issue the over his admission single involving objec- tion of his statement made at the scene in to a response asked of him the officer without the benefit of a Miranda We the conclude erroneous admission was warning. harmless error and affirm. was with how versions of
Although jury presented conflicting occurred, the crimes the facts for the resolution necessary issue are not A detailed statement of single presented dispute. facts is to demonstrate the harmless nature of error necessary raised. defendant; the former wife the wife of
Evelyn Wayne Charles the victim of the defendant’s Wayne, aggravated battery; victim, Guinn; sister of the murder and the mother Johnella the defendant’s The defendant had been daughter, Misty Ewing. married to some time when divorced Evelyn Wayne quite they in 1990. to she and the defendant remained on According Evelyn, terms after the divorce until she started Charles. Eve- good dating testified that after her to Charles the defendant be- lyn marriage Charles, came despondent began threatening which incident led the defendant’s occurred convictions 7,1993. on and Charles had with attended church Evelyn February members of and then went to Evelyn’s family Evelyn’s parents’ house, which was door to defendant’s house. next When they arrived, the defendant was in his his truck. drivewaywashing They did not to or the defendant. speak acknowledge and Charles ate dinner her af- house. That
Evelyn parents’ ternoon, the defendant called the house and if he asked Evelyn could some which were at her his pick up cleaning supplies so if he told him he could do
house. brought police Evelyn Charles outside to send also asked The defendant Evelyn along. that to him for wished to the defendant because things apologize was not nec- told him he had said Evelyn apology previously. essary. afternoon, to leave. and Charles that
Later prepared Evelyn wife, for his walked he the car door Charles testified opened the de- car, seat. At this in the driver’s around the point, got to' shut Charles was in his As fendant was preparing standing yard. don’t. shout: heard the door he Daddy, “Daddy, Misty Ewing out from that he bent over testified don’t.” Charles get gun fearful of what the de- car because he was the seat of the under he to him. As he fendant do weapon, trying get might car with a The defen- outside the saw the defendant gun. stánding *3 shots, went both of Charles’s one of which dant fired two through legs. car with a his saw the defendant gun approach
Evelyn her testified that she heard hands. She saying, daughter, Misty, don’t,” out of then heard two shots. As and Evelyn got “Daddy, Guinn, car, sister, towards the she saw her running up Johnella around, turned She testified that the defendant defendant. pointed Guinn, and was struck one bullet at and fired. Guinn by gun as a result of the wound. died entered the as Charles and
The defendant testified that Evelyn to car, he needed to the car with some bills he give approached reach down beneath stated that he saw Charles He Evelyn. he out the and out a He then seat kept gun gun. pulled pull His with him and shot Charles self-defense. Misty, daughter, their from him. then tried to During struggle get gun away Guinn. killing accidentally discharged, gun officer, was a Kansas ap- City police patrolling Gary Granger, when he was called from the incident one block away proximately scene to find He arrived on the to the address dispatcher. checked around. He a crowd of milling people approximately'30 none.. Guinn for a but found pulse crowd, that a Officer discovered in the
From Granger people was next door. Guinn and that named shot Ewing Ewing did not know named went to Granger anyone Ewing. Granger males, house and as he two one of whom was Ewing’s approached, walked out of the house. Officer drew his Granger gun told both of the males to halt and their he hands where could put see them. then He asked: “Who shot the The taller of the lady?” two to stated: “I shot the bitch.” pointed Ewing. Ewing According trial, direct wns then taken into Granger’s testimony Ewing However, trial, in a cross-exami- custody. hearing prior nation, had stated that he the defendant in Granger placed custody when he from the house. then emerged Granger began searching which he found on the front Ewing’sweapon, porch Ewing’s house. trial,
Prior to the defendant moved in limine to suppress statement he made to on the that he had not been ground advised of his Miranda The court denied the defendant’s rights. motion on the basis that the two individuals were not in custody at the time the defendant made his statement and on the further basis that the had not focused on the defendant. At investigation trial, the defendant to the admission of his state- again objected ment.
The first
we must resolve is whether the district court
erred
the defendant’s statement to
The de-
by admitting
Granger.
fendant
that he was in
argues
undergoing interrogation
therefore,
and,
him,
were
to be
based
rights
required
given
Arizona,
on the
of Miranda v.
U.S.
16 L. Ed. 2d
ruling
The district court refused to based on two reasons: suppress The defendant was not in at time the the statement custody made, (2) the officer had not focused his on the suspicion
402 case, U.S. — v. 511 In a recent
defendant. California, Stansbury 293, Ct. the United States Su- 2d 114 S. 1526 128 L. Ed. fo- the officers had that whether Court held interrogating preme is not the individual cused their being questioned upon suspicions if are not dis- Miranda those of relevant suspicions purposes 301. held that 128 L. 2d at The Court closed to the defendant. Ed. issue or beliefs bear an officer s custody knowledge individual word or deed if are being conveyed by they being would are relevant to the extent but they they only questioned, a would his or her freedom affect how reasonable gauge person Therefore, in L. 2d 300. factor action. 128 Ed. determining is whether the a Miranda is whether required warning deciding 128 2d at 298-99. taken into See L. Ed. has been custody. case, at trial that he the individuals In this testified put However, made his statement. as after Stansbury custody Ewing clear, is an belief of the officer not issue makes the subjective a is in for the whether determining suspect purposes See it is communicated to Miranda unless actually suspect. Ed. 2d at 300. 128 L. Stansbury, s to administer a Miranda attaches
An officer
warning
obligation
free-
has been such restriction on
where there
suspect’s
only
Mathiason,
v.
him her in
429
dom as to render
or
Oregon
custody.
495,
714,
(1977);
492,
97
see State v.
50 L. Ed. 2d
S. Ct. 711
U.S.
Fritschen,
592,
2,
802
558
In deter-
P.2d
Syl. ¶
was in
the “ultimate
whether
individual
custody,
inquiry
mining
or
freedom
whether there is
‘formal arrest
restraint on
is simply
with a formal arrest.
movement’ of the
associated
[Ci-
degree
1121, 1125,
Beheler,
v.
463 U.S.
77 L.
tation omitted.]” California
1275,
(1983);
S. Ct. 3517
see
v.
Ed. 2d
103
California,
Stansbury
standard);
this
see also State v.
L.
2d at 298
Ed.
(quoting
standard).
Fritschen, 247
this
Kan. at 599 (discussing
The initial determination
objective
custody depends upon
relevant
circumstances of
interrogation,
only
inquiry
would have under-
“how a
man in the
shoes
reasonable
suspect’s
v.
L. Ed. 2d at 299
situation.”
stood his
California,
Stansbury
Ed. 2d
v.
468 U.S.
L.
Berkemer McCarty,
(quoting
it
Kansas has
deemed
403
determination,
set forth
hard and fast factors in
this
any
making
instead
to determine each case on its facts. See State v.
preferring
Fritschen,
We conclude that the defendant was in when custody Granger asked his had ordered the defendant question. Granger stop He then a asked which its nature would elicit gunpoint. question time, a confession. thisAt a reasonable would have believed that his freedom of action was curtailed. The conduct significantly was also conduct which is associated more by Granger type with a formal arrest than informal for information. request himself stated at the motion in limine that he hearing the defendant in before his Under placed custody asking question. circumstances, the defendant was in have should been advised of his Miranda This con- rights prior interrogation. clusion, however, does not end our Even an error of con- inquiry. stitutional be harmless. If this court a magnitude may possesses firm belief little, reasonable doubt that the error had if beyond trial, likelihood the result it be any, changed having Watson, declared harmless. State v. Kan. 885 Syl. ¶ P.2d
The defendant’s to the officer’s identified the response question However, defendant as the one who had shot Guinn. identity witnesses, not issue in this case. All the de- testifying including fendant, admitted that it was the defendant who shot readily Guinn. The defendant’s was that he shot Guinn theory accidently. Thus, the the defendant as the did shooter response identifying not defendant own of his and the admission prejudice light evidence the defendant as the shooter. overwhelming establishing The defendant that his with the inclusion of the argues response word “bitch” caused substantial that we re- prejudice, requiring verse and remand for a new trial. We It must be noted disagree. that defendant’s main own to his choice of objection language Moreover, to the asked the defen- by Granger. case, dant was able to which was fully develop theory accidental, that his of Guinn was from shooting resulting struggle with his at the scene. His choice of word while “bitch” daughter himself as the shooter did not from identifying prevent jury *6 in an accidental evidence of light shooting, especially considering Guinn of towards was no evidence fact that there of the animosity defendant. on the part case, of this the circumstances conclude that under
We
beyond
doubt,
officer and
a reasonable
investigating
by
little,
question
likelihood of
had
if
of the defendant
chang-
any,
response
Thus,
is harm-
conclude that the error
trial.
we
the result of the
ing
the defendant’s convictions.
and affirm
less
that Miranda
State makes a
warning
argument
persuasive
case because of the
not
in this
safety exception
public
required
550,
649,
Ed. 2d
467 U. S.
81 L.
in New
v.
found
York Quarles,
(1984),
in the case of State
this court
S. Ct. 2626
as
104
by
applied
6-7,
McKessor,
1,
(1990). We need not
Lockett, with the conviction but the defendant’s majority’s disagree firming interro- was in that the defendant conclusion being of the Miranda in a manner that warning required giving gated 694, Arizona, 2d 86 U.S. 16 L. Ed. in Miranda v. 384 set out fails Ct. 1602 In its S. analysis, majority recognize that be conducted there are two of that by may types interrogation officer, “in- and an a “custodial a law enforcement interrogation” interrogation.” vestigatory Miranda, Court in its landmark the United States
In Supreme decision “custodial interrogation” proclaimed: discussing statements, or use whether may exculpatory inculpatory, prosecution “[T]he it the defendant unless demonstrates from custodial interrogation stemming self- effective to secure the the use of privilege against safeguards procedural initiated law we mean by incrimination. custodial interrogation, questioning By or otherwise has been taken into custody officers after enforcement person at 444. in 384 U.S. of his freedom of action way.” any significant deprived Miranda, however, stand for an absolute does not proposition citizen a never ask a detained law officers that enforcement the constitutional without first informing
405 observed, to remain silent. As the Miranda court right “[g]eneral to facts on-the-scene as a crime or other questioning surrounding in citizens is not general questioning fact-finding process affected It an act our by holding. citizenship responsible individuals to whatever information to aid in have give they may law enforcement.” 384 U.S. 477-78. thereafter,
Miranda was decided 1966. v. Shortly Terry Ohio, U.S. L. Ed. 2d Ct. 88 S.
United States modified Court line rule set Supreme bright Miranda. The court that because of the Terry recognized govern- crime, ment’s interest in un- general preventing *7 der certain circumstances law enforcement officers have a right and search for individuals physically stop personal safety purposes an during investigatory interrogation.
Based on the Kansas enacted K.S.A. 22-2402 Terry, Legislature statute, 22-2402, in 1970. The now K.S.A. 1994 Supp. provides arrest, that without an a law enforcement officer making may stop ain whom such officer any person public place suspects reasonably committed, has or is about to a commit crime and committing, demand name and address of such and an may suspect expla- nation of such actions. The statute further notes that after suspect’s a law enforcement officer has a for and stopped person questioning it, that the officer’s reasonably suspects personal safety requires the officer frisk the for or firearms other may dangerous If the law enforcement officer finds a firearm or weapons. weapon, or other of which abe crime or evidence of thing possession may crime, a the officer take and it until the keep completion at which time the officer shall either return the questioning, item if or arrest the K.S.A. 1994 lawfully possessed person. Supp. 22-2402(2). kind,
In the absence of this it could have been legislation that a Kansas officer had no a sus- search argued power police for until an arrest has been made. The stat- pect weapons actually ute clarifies the officer to an restrain power individual and make a for search to an preliminaiy weapons prior actual arrest. The and limitations to such justification applicable are Court in v.
statutory
Supreme
Terry
powers
expressed
Ohio,
whether
the result
a “custodial
were
or
they
interrogation”
A custodial
which re-
“investigatory interrogation.”
interrogation,
that Miranda
be
involves
re-
quires
warnings
given,
significant
a
straints on
freedom of movement
a law
subject’s
imposed by
Brunner,
2,
enforcement officer. See State v.
211 Kan.
Syl. ¶
(1973);
403, 405,
On that the statements made he before Taylor appeal argued were inadmissible. The court observed that the waiving rights statements whether admissibility Taylor’s depends upon they were the result of a “custodial or an interrogation” “investigatory court on-the- *8 interrogation.” Taylor recognized general scene as to facts a crime or other questioning surrounding general citizens does not consti- questioning fact-finding process tute custodial a Miranda An in- interrogation requiring warning. no is defined as the vestigatory interrogation, requiring warning, law enforcement officers in a routine questioning persons manner which has not reached an accusa- during investigation and where such are not in or de- tory stage persons legal custody of their freedom of action in 231 Kan. prived any significant way. at 173.
The court noted that the term under Mir- Taylor “interrogation” anda refers not to of a but also only express questioning suspect, (other to words or actions on of the than those any part police attendant to arrest which the should normally custody) police know are to elicit an from reasonably likely incriminating response The latter of this definition focuses suspect. portion primarily of the rather than the intent perceptions suspect This focus reflects the fact that the Miranda police. safeguards were to vest a with an added measure designed suspect coercive without to protection against police practices, regard intent of the A objective proof underlying police. practice that the should know is to evoke an incrim- police reasonably likely from a thus amounts to inating response suspect interrogation. court held that a for a to himself is Taylor request person identify within the of Miranda and found that interrogation meaning the trial court did not err in s answer. 231 Kan. admitting Taylor at 174.
State v.
234 Kan.
at 477.
From in the crowd at here, the scene of the people shooting Officer discovered that a named shot Guinn Granger Ewing and that was “next door.” did not know Ewing Granger anyone named went to the house next door and as he Ewing. Granger males, two one of which was walked out of the approached, house. Officer drew his and told both of the males to gun halt and their hands where he could see them. He then asked: put “Who shot the answered the officer’s lady?” Ewing question by “I shot the bitch.” stating: *9 officer After conducting investigatory interrogation. safe, that it was
stopping Ewing
insuring
investigate,
officers had the
to demand
name and address and
right
Ewing’s
ask who had shot the victim. The officer
elicit state
attempted
ment from the defendant but did not
to elicit a statement
attempt
as to his intent. The Fifth Amendment to the
incriminating Ewing
United States Constitution does not
all
state
prohibit
incriminating
ments.
self-accusation,
Absent some
coerced
the Fifth
officially
Amendment
self-incrimination is not violated
privilege against
even the most
admissions. United States v.
damning
Washington,
181, 187,
431 U.S.
(1977).
L. Ed. 2d
McFarland,