In re P.W.G.

Decision Date20 July 2018
Docket NumberNo. 118,211,118,211
Citation426 P.3d 501,56 Kan.App.2d 156
Parties In the MATTER OF P.W.G., A Minor Child.
CourtKansas Court of Appeals

Amanda J.M. Faber, assistant county attorney, for appellant.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.

Before Standridge, P.J., Hill and Buser, JJ.

Standridge, J.:

The State brings this interlocutory appeal following the district court's decision to grant P.W.G.'s motion to suppress. After P.W.G., a juvenile, waived his Miranda rights and made inculpatory statements during a police interrogation, he was charged with two counts of aggravated indecent liberties with a child. Before trial, P.W.G. moved to suppress those statements. The district court granted the motion, finding that P.W.G.'s police interrogation was custodial and that his Miranda waiver was invalid under K.S.A. 2017 Supp. 38-2333(b), which governs the admissibility of confessions from a juvenile who is less than 14 years of age. For the reasons stated below, we affirm the district court's decision to suppress the statements made by P.W.G. during the police interrogation.

FACTS

On November 15, 2016, Audrey K. reported to the El Dorado Police Department that she had reason to believe her 6-year-old son, E.G., had been fondled by his 13-year-old half-brother, P.W.G., while the two boys had weekend visits with their shared biological father, Pablo G. On November 16, 2016, Sergeant Jeff Murphy interviewed E.G. During this interview, E.G. alleged that he and P.W.G. had touched each other's penises approximately seven or eight times and that P.W.G. had anally penetrated him.

That same day, Sergeant Murphy contacted Pablo and asked him to bring P.W.G. to the police station for an interview. According to Murphy, he provided "minimal" information to Pablo, explaining that there was an active investigation involving E.G. as the victim of sexual abuse and P.W.G. as the alleged perpetrator of the abuse. Pablo brought P.W.G. to the police station that afternoon for the interview. Pablo later testified that when they arrived for the interview, he knew that the allegations involved P.W.G. but was unsure as to whether P.W.G. was the alleged victim or the alleged perpetrator.

A video recording of the interview shows Sergeant Murphy leading P.W.G. and Pablo into a room and Murphy closing the door behind them. After the three sat down, Murphy explained that he wanted to talk to P.W.G. about some serious things E.G. said happened on visitation weekends at their father's house. Murphy further explained that because of P.W.G.'s age, the interview had to be conducted with a parent present. Murphy advised P.W.G. that he could be considered a suspect in the case because of the nature of the offenses. At this point, Pablo asked Murphy whether the request to interview P.W.G. was related to Audrey's request to have full custody of their children, which the family court previously had denied. Murphy said no; the interview had to do with allegations made by E.G. against P.W.G., which Murphy went on to say he had no doubt were true. Citing to his extensive experience in "these cases," Murphy said the issue was not "if" the offenses alleged by E.G. happened, but "why" they happened. Murphy then advised that the worst thing P.W.G. could do in a situation like this one was to deny something happened when P.W.G. knew it really had happened. Murphy emphasized that he was very good at his job and would not bring a child to the police station with a parent and confront the child with allegations of wrongdoing if Murphy did not believe the allegations were true.

At this point, Sergeant Murphy asked Pablo if he would give Murphy permission to speak with P.W.G., noting that Pablo was more than welcome to either stay for the interview or leave. Pablo told Sergeant Murphy that he would stay because he was anxious to learn the details of the unspecified allegations his son E.G. had made against his other son P.W.G. Murphy said he would provide the details of the allegations if, after being advised of his right to remain silent and to have counsel present during the interview, P.W.G. agreed to answer questions. Murphy went on to say that "[i]f we get that knocked out, and you guys are willing to speak with me, then I will put all the details on the table." Taking out a document entitled Miranda Warning, Murphy then read and explained to P.W.G. each of the rights set forth in it. After having P.W.G. acknowledge by initials that Murphy read each of the rights to him, Murphy and Pablo signed as witnesses. Murphy then told P.W.G. that "[i]f you and your dad want to read this and you understand it, then sign and date right there and then I'll sign down there. ... You might have your dad read that with you. If you guys have questions, ask." The "it" to which Murphy referred was the waiver of rights section of the Miranda Warning form. Murphy did not verbally refer to the section as a waiver of rights, let alone explain what it meant to waive the rights Murphy had just enumerated. After P.W.G. and Pablo silently read and then signed the waiver, Murphy formally asked Pablo for permission to speak to P.W.G. Pablo responded that he was fine with it because he wanted to know what was going on. When asked, P.W.G. told Murphy that he was willing to answer Murphy's questions.

At the outset of the interview, Sergeant Murphy stated that he was not trying to get P.W.G. in trouble, but serious issues needed to be addressed in order to help P.W.G. Upon questioning from Murphy, P.W.G. confirmed that he visited Pablo's house every other weekend and that he and E.G. shared a bedroom there. Murphy then advised P.W.G. of E.G.'s claims of inappropriate touching between the two brothers. After a period of silence, Murphy told P.W.G. to just be honest. When P.W.G. still did not respond, Murphy repeated the statements he made before advising P.W.G. of his right to remain silent and his right to have an attorney present: Murphy had no reason to think E.G. was being dishonest, Murphy would not bring someone in with a parent unless he believed something had happened, and that being dishonest was the worst thing P.W.G. could do.

P.W.G. admitted that he and E.G. sometimes slept in the same bed together and that he helped bathe E.G. but denied that any inappropriate touching had occurred in the bedroom or bathroom. P.W.G. said he did not know why E.G. would make such claims. Sergeant Murphy explained that if P.W.G. did inappropriately touch E.G., it would not necessarily mean that P.W.G. understood that what he was doing was wrong. Murphy stressed that if inappropriate touching had occurred, P.W.G. should talk to Murphy about it now because it could be an impulse problem that P.W.G. could not control. Murphy generally commented that nobody was accusing P.W.G. of hurting anyone and then specifically commented that no one was accusing P.W.G. of hurting E.G. When P.W.G. did not respond to Murphy's comment, Murphy asked whether P.W.G. was not talking about the inappropriate touching because P.W.G. was afraid. After P.W.G. said no, Pablo interjected, instructing P.W.G. to just tell the truth. Pablo went on to say that if P.W.G. did something wrong, both Murphy and Pablo wanted to know. Pablo again instructed P.W.G. to tell the truth.

Sergeant Murphy then picked up where Pablo left off, explaining that it is important to tell the truth not just because it would help P.W.G. but also because it would help E.G. Specifically, Murphy said, "This could affect [E.G.] too as far as [E.G.] being able to come to dad's house to visit." Murphy said that E.G.'s allegations were not something he just made up that day. Murphy went on to reiterate that no one was mad at P.W.G. about the situation. In support of this notion, Murphy explained that P.W.G. and E.G. had different moms, so what happened in the relationship between Pablo and E.G.'s mom would not affect what happened in the relationship between Pablo and P.W.G.'s mom. Murphy commented that E.G. wanted to be able to be around their dad, too.

At that point, which was about 28 minutes into the interrogation, P.W.G. disclosed that E.G. had tried to touch him while they were in bed together, but he told E.G. to stop. P.W.G. continued to deny that he had inappropriately touched E.G. Apparently not believing P.W.G., Sergeant Murphy urged P.W.G. to disclose the truth, just like his dad was telling him. Murphy told P.W.G. that E.G. was not lying because E.G. had no reason to lie. Murphy noted that E.G. was in a bad situation because E.G. did not know when he was going to get to see his dad again. At about 37 minutes into the interrogation, P.W.G. admitted that he had asked E.G. to touch his penis in the bathtub because he wondered how it felt. P.W.G. claimed that he told E.G. to stop right after because he knew it was not right. P.W.G. denied trying to anally penetrate E.G. After P.W.G.'s admission, Murphy left the room for a few minutes. During this time, Pablo told P.W.G. that he had to tell the truth because Pablo was not going to be able to see E.G. until the issue was resolved. Pablo said he felt bad about the situation because P.W.G. and E.G. were both his kids and that he wanted to help both of them. Pablo then reiterated that P.W.G. should be honest because, again, he wanted to help P.W.G. and E.G. because they were both his sons.

After Sergeant Murphy reentered the room, Pablo continued talking to P.W.G., saying he wanted to know what was going on because E.G. was his son and P.W.G. was his son. Pablo went on to say that everyone makes mistakes and P.W.G. should "be a man" and be honest with Murphy, if he had not been honest so far, so they could get to the bottom of what had happened.

Sergeant Murphy again expressed his belief that E.G. was telling the truth and that P.W.G. was minimizing his involvement. After Pablo encouraged P.W.G. to tell them what happened, P.W.G. admitted that he and E.G. had touched each other's...

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