Burk v. State

• Decision Date: 10 March 1993
• Docket Number: Nos. 92-36,92-37,s. 92-36
• Citation: 848 P.2d 225
• Parties: Ross BURK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff) (Two Cases).
• Court: Wyoming Supreme Court

Page 225

848 P.2d 225

Ross BURK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff) (Two Cases).

Nos. 92-36, 92-37.

Supreme Court of Wyoming.

March 10, 1993.

Kathleen Audette Rideout, Casper, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen. and Barbara L. Boyer, Sr. Asst. Atty. Gen., Cheyenne, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ.

GOLDEN, Justice.

This is a consolidated appeal from two separate bench trials in which appellant Ross Burk was found guilty of two counts of burglary and one count each of aggravated robbery, conspiracy to commit aggravated robbery, and conspiracy to commit burglary. Appellant raises issues concerning the voluntariness of inculpatory statements he made to police while in custody, the sufficiency of the evidence to support the conviction of conspiracy to commit aggravated robbery, the appropriateness of the sentences he received, the failure of one of the trial judges to disqualify himself before trial, and police conduct which allegedly resulted in a denial of effective assistance of counsel.

We shall affirm.

Appellant stated the issues in this way:

1. Are statements made to law enforcement officials admissible when a waiver of constitutional rights was obtained under the circumstances that the confessor 2. Is physical evidence admissible when it is obtained under the circumstances that the confessor's wife is taken by police officers to pick such evidence up after having been misled as to the confessor's status as a victim?

had been kidnapped and severely beaten and injured, deprived of sleep for an extended period, and had been assured by police officers and a district attorney that he was being questioned solely as a victim and not as a suspect, and where the confessor was deprived of counsel after request and denied access to a telephone until after he had signed the waiver?

3. Is physical evidence admissible when it is obtained from private individuals who obtained such property by commission of crimes and who kidnapped and severely beat and held the accused in handcuffs and shackles for eleven hours to obtain admittedly involuntary statements?

4. Is evidence (including statements of codefendants) obtained as the result of involuntary statements and an unknowing waiver of constitutional rights (including consents to search) admissible?

5. Was the evidence sufficient to convict appellant of conspiracy to commit armed robbery?

6. Was it abuse of discretion for the trial courts to fail to consider probation, and were the sentences inherently unfair compared with other defendants' sentences?

7. Was appellant deprived of due process by Judge Spangler's refusal to disqualify himself?

8. Was appellant denied effective assistance of counsel when the police officer misrepresented to his attorney that he was not a suspect, causing his attorney to improperly advise appellant concerning making a statement?

The state rephrased the issues to be:

I. Were appellant's statements to the police made knowingly, intelligently and voluntarily?

II. Was appellant's conviction of conspiracy to commit aggravated robbery based upon sufficient evidence?

III. Did appellant receive an appropriate sentence for the crimes he committed?

IV. Did Judge Spangler properly deny appellant's motion to disqualify himself from appellant's case?

V. Was appellant denied effective assistance of counsel?

FACTS

Appellant, age 27, married, and self-employed as a motor vehicle and body shop mechanic, arose at 6:30 a.m. on August 21, 1990, to begin his normal work-day. That day he and Mark Timmerman were working on the transmission of Timmerman's truck. Around 1:30 p.m. John E. Kunckel and three of his friends stormed into appellant's shop. They seized appellant and Mr. Timmerman, placed handcuffs and leg shackles on them, and began interrogating appellant about his participation in the theft of property owned by Kunckel and one of his companions. Timmerman described the first ten minutes of this encounter as "pretty intense." He stated appellant was hit in the face or eye with a closed fist, hit across his chest several times with a two-pound sledge hammer, and at one time placed in a choke-hold that caused appellant to complain that he was getting light-headed and was going to faint.

Kunckel and his companions held appellant and Timmerman captive until around 1:00 a.m., August 22, 1990. During this almost twelve-hour period of time, Kunckel extracted from appellant admissions that he was guilty of the crimes of which Kunckel accused him. Also, appellant helped Kunckel and his companions recover some of the property involved.

Late on the night of August 21, 1990, Kunckel called the Casper Police Department, reported that he had captured the fellow who had stolen his property, and asked the police to come to the location where he was holding appellant. Several members of the police department soon arrived and Kunckel released appellant to After returning to the police department detective Burgen met with appellant in the interview room at about 1:30 a.m., August 22, 1990. Detective Burgen saw that appellant's lip was cut and swollen, his eye was red and the cheek under it had a "mouse," his shirt was torn, and his chest was swollen and discolored red and purple. Where Kunckel's handcuffs had been, appellant's wrists were red and swollen.

them. Detective Pat Burgen placed handcuffs on appellant, who was then taken to the police department by another officer. Detective Burgen stayed with Kunckel for a short period of time, gathering information that Kunckel had developed during the time he held appellant.

Detective Burgen asked appellant what happened. According to Burgen, appellant "related a slight, brief story" that he had been abducted from his shop, had been beaten, had been handcuffed and shackled; his wrists hurt and chest hurt, he was having difficulty breathing, and he wanted to see a doctor. Detective Burgen and police officer Kirkendale immediately took appellant to the hospital emergency room for medical attention. Burgen testified at trial that he asked Kirkendale to call Burk's wife, Jill, around 1:30 a.m. She testified at the suppression hearing that she received Kirkendale's call around 1:30 a.m., telling her Burk was being questioned at the police department.

At the hospital emergency room, Dr. Michael Bruno examined appellant. Dr. Bruno's initial medical assessment was that appellant appeared to be stable and did not require hospitalization for his injuries. From his examination of and the history he obtained from appellant, Dr. Bruno noted contusions of the left temple and maxillar region, complaint of facial pain, and "left-sided and rib pain." According to the doctor, appellant did not indicate he was unable to breath; further, he considered appellant to be alert and oriented with no impairment of his mental abilities. As a standard precautionary measure, Dr. Bruno issued to detective Burgen, a head injury sheet with specific injury signs to watch for. Dr. Bruno explained these instructions are issued whenever hospitalization is unnecessary, but the patient presents with the potential for head injury or facial contusions.

Detective Burgen and appellant left the hospital emergency room and returned to the police department by about 3:30 a.m. In the interview room they were joined by police officer DeGraw. After a brief conversation among appellant and these officers, which we shall examine closely later, detective Burgen took appellant to the jail for booking. Around 4:00 a.m., appellant, now wearing distinctive jail clothing, was placed in a cell.

Jill Burk testified that she called the police department at 6:00 a.m. and was told Burk was being held under suspicion of burglary. She then called appellant's father, John Burk, an attorney. Around 8:00 a.m., detective Burgen and officer DeGraw met with assistant district attorney Pat Crank in the latter's office to discuss appellant's situation. Detective Burgen related to Crank the information he had received several hours earlier from Kunckel. Crank decided he should talk to appellant. Detective Burgen arranged to have appellant taken from his jail cell to the police department conference room.

Around 8:50 a.m., August 22, 1990, Crank, detective Burgen and officer DeGraw met with appellant in the conference room. According to Crank, he told appellant he needed his cooperation to get the persons who had abducted and beat him. Crank observed that appellant was incredibly remorseful. Burgen, DeGraw and Crank found appellant to be alert. According to DeGraw, appellant was fine, appeared eager to talk, and did not complain about his physical condition. According to Crank and the officers, appellant stated he had screwed up his life, needed to get some things off his chest, needed to go to the pen and get his life back in order. Crank stated he told appellant that if the latter felt he needed to get some things off his chest then he should be completely truthful with the police. Crank further stated he made no promises that whatever appellant told the police would not later be used There is no dispute that at this point detective Burgen and officer DeGraw then advised appellant of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). After determining that appellant wished to waive these rights, the officers presented him with a waiver of rights form to execute, which he did. The officers then began interrogating appellant, and appellant began making inculpatory statements.

against him. Crank returned to his office, while Burgen and DeGraw remained with appellant.

Before the officers tape recorded appellant's statements, they received word that appellant's father, John Burk, was in the building and had requested to see his son. Detective Burgen met appellant's father and...