904 P.2d 985 (Kan. 1995), 71122, State v. Brown

Docket Nº:71122.
Citation:904 P.2d 985, 258 Kan. 374
Party Name:STATE of Kansas, Appellee, v. David C. BROWN, a/k/a Christopher D. Brown, Appellant.
Attorney:[6] Thomas Jacquinot, special appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant. Mike E. Ward, county attorney, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellee.
Case Date:October 27, 1995
Court:Supreme Court of Kansas

Page 985

904 P.2d 985 (Kan. 1995)

258 Kan. 374

STATE of Kansas, Appellee,


David C. BROWN, a/k/a Christopher D. Brown, Appellant.

No. 71122.

Supreme Court of Kansas

October 27, 1995

Page 986

[Copyrighted Material Omitted]

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Syllabus by the Court

1. Hearsay statements are inadmissible unless one of the various hearsay exceptions is satisfied. K.S.A. 60-460(j) provides an exception for declarations against interest:

"Subject to the limitations of exception (f) [concerning confessions], a statement which the judge finds was at the time of the assertion so far contrary to the declarant's pecuniary or proprietary interest or so far subjected the declarant to civil or criminal liability or so far rendered invalid a claim by the declarant against another or created such risk of making the declarant an object of hatred, ridicule or social disapproval in the community that a reasonable person in the declarant's position would

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not have made the statement unless the person believed it to be true."

2. K.S.A. 60-460(j) requires as a preliminary measure of trustworthiness that the trial judge, prior to admission of a declaration against interest, make a finding that the character of the declaration was of such nature a reasonable person would not make it unless he or she believed it to be true. Probability of veracity is the safeguard sought; the reasonable person test is the criterion to be used. The judge should be concerned with the admissibility, not the weight, of evidence. The judge may in a particular case be faced with a difficult decision where caution should be exercised. In making the decision, the judge necessarily must be vested with wide discretion.

3. A trial judge has wide discretion in determining the admissibility of a declaration against interest and may consider such factors as the nature and character of the statement, the person to whom the statement was made, the relationship between the parties, and the probable motivation of the declarant in making the statement.

4. Each hearsay statement admitted at trial must satisfy a hearsay exception. Prior testimony of an unavailable witness may be admitted under a hearsay exception, but other out-of-court statements made by the same witness are not admissible unless a specific hearsay exception applies to the other statements.

5. A harmless error analysis applies where admissible hearsay is wrongfully excluded. To [258 Kan. 375] declare an error harmless, this court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.

6. A defendant may rely on the defense of voluntary intoxication where the crime charged requires specific intent. An instruction on voluntary intoxication is required if there is evidence to support the defense.

7. Without evidence of mental impairment, evidence of mere consumption of alcohol and drugs is insufficient to require a voluntary intoxication instruction. The defendant has the burden of showing that he or she was so intoxicated that his or her mental faculties were impaired by the consumption of alcohol or drugs.

8. The determination of whether to change venue is entrusted to the sound discretion of the trial court; its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. The burden is on the defendant to show prejudice exists in the community, not as a matter of speculation, but as a demonstrable reality. The defendant must show that such prejudice exists in the community and that it was reasonably certain he or she could not have obtained a fair trial.

9. In determining whether a custodial confession by an accused is admissible into evidence, this court must first determine whether there is substantial evidence to support the trial court's finding that the confession was voluntary. In determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The prosecution carries the burden of proving by a preponderance of the evidence that a confession is admissible.

10. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused to communicate with the outside world on request; the accused's age, intellect, and background; and the fairness of the officers in conducting the interrogation. 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.

11. When a trial court determines an extrajudicial statement by an accused was freely and voluntarily given, after conducting a full hearing on the admissibility of the statement, thereby admitting the statement into evidence at trial, an appellate court accepts that determination if it is supported by substantial competent evidence.

[258 Kan. 376] 12. In a prosecution for first-degree murder and attempted aggravated robbery, the record is examined and it is held the trial court did not commit reversible error (1) in excluding certain evidence; (2) in not giving a voluntary intoxication instruction; (3) in certifying the defendant to stand trial as an

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adult; (4) in not granting a change of venue; and (5) in admitting the defendant's confession into evidence.

Thomas Jacquinot, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Mike E. Ward, County Attorney, argued the cause, and Carla J. Stovall, Attorney General, was with him on the brief, for appellee.

ABBOTT, Justice:

This is a direct appeal by David C. Brown from his convictions for first-degree murder and attempted aggravated robbery. He was sentenced to life on the first-degree murder charge and 3 to 10 years on the attempted aggravated robbery charge, with the sentences to run consecutively.

The defendant raises five issues. He claims error in his certification to be tried as an adult, in the admission of evidence, in not giving an instruction on voluntary intoxication, in denying a change of venue, and in the admission of his confession into evidence.

This case arises from the shooting death of Richard Johnston, a clerk at the Kwik Shop in Augusta, Kansas. As a result of cancer surgery to his throat, Richard Johnston had limited ability to verbally communicate. At 2:38 a.m., a 911 call was made by an unidentified person. The dispatcher was unable to discern what the person was saying, but later review of the taped call revealed that the person said, "I've been shot, been shot." Augusta does not have an enhanced 911 system, so the dispatcher was unable to trace the location from which the call was made. Around 3:15 a.m., a customer discovered the clerk at the store and reported his death. The Kwik Shop telephone was off the hook. The cause of Johnston's [258 Kan. 377] death was two bullet wounds, one above the right breast and one below the middle chest area. Two additional bullets were recovered from the scene.

Around noon the same day, the defendant was taken into custody by El Dorado law enforcement officers who were investigating the shoplifting of an air pistol from the El Dorado Wal-Mart. Realizing the defendant was from Augusta, the officers Mirandized the defendant and questioned him about his activities the night before and about Johnston's homicide. The defendant denied any knowledge about the murder but admitted he was at the Kwik Shop the previous night. Augusta authorities were notified, and they came to El Dorado.

At approximately 4:30 p.m., Augusta Officer McNown and KBI Agent Green began interviewing the defendant. The defendant was again Mirandized and the questioning continued for several hours. At that time, the defendant was living in Augusta with Frankie Grissom; Frankie's husband; and Frankie's son, Gary Hastings. The Grissom home was in close proximity to the Kwik Shop, and the defendant often frequented the Kwik Shop. The defendant felt that he was in danger of being asked to leave the Grissom home. Frankie had given away the defendant's dog, and the defendant felt he was not getting along with Frankie. Initially, the defendant stated that friends had come over to the Grissom house on the evening in question. Later, the defendant admitted that he had gone to the Kwik Shop on the night in question to buy cigarettes.

Upon further questioning, the KBI agent accused the defendant of committing the murder. At this time, the defendant stated, "I did it," and he hit the wall with his fist. The defendant related the following information about the crime. He went to the Kwik Shop and told the clerk, "Give me all your money." The clerk made a motion, and the defendant shot the clerk three or four times. The defendant said he used a gun that he had had for awhile, which Gary Hastings did not know about. When the officer asked the defendant if he shot three or four times, he said four. At that time, the questioning officers did not know how many shots had been fired, nor had this information been released to the press. The defendant said he grabbed a handful of cigarettes and ran home [258 Kan. 378] and that he threw the gun into an alley. The defendant indicated that he robbed the store to get money to buy a car stereo for Frankie Grissom's birthday. The defendant wrote a letter of apology to the Johnston family, saying

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he felt bad about what he had done. The defendant also drew a picture of the alley where he claimed to have thrown the gun. However, the defendant later told the officers that he put the gun on the headboard of his bed at the Grissom home.

The defendant was taken to the hospital to check his hand...

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