Kauffmann v. Com.

• Decision Date: 11 July 1989
• Docket Number: No. 0121-87-4,0121-87-4
• Parties: Paul James KAUFFMANN, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 279

382 S.E.2d 279

8 Va.App. 400

Paul James KAUFFMANN, Jr. v. COMMONWEALTH of Virginia.

Record No. 0121-87-4.

Court of Appeals of Virginia.

July 11, 1989.

John E. Kilcarr, Arlington, and Harvey Volzer, for appellant.

Richard A. Conway, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present BENTON, COLE and MOON, JJ.

MOON, Judge.

Paul James Kauffmann, Jr., seeks reversal of his conviction for the aggravated sexual battery of his fourteen year-old daughter. His principal claims are (1) that his confessions were not admissible because they were involuntarily given and because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (2) that out-of-court statements made by his deceased daughter, and which suggested that Kauffmann had molested her, were improperly admitted into evidence.

Although we find that Kauffmann's confessions were voluntary and were not obtained in violation of Miranda, we reverse the conviction and remand because we find that the statements made by the daughter were inadmissible hearsay. On other issues concerning jury instructions, we uphold the trial judge's rulings that contributing to the delinquency of a minor is not a lesser included offense of aggravated sexual battery and that the facts of this case did not support the giving of an instruction for the lesser included offense of sexual battery.

On April 1, 1986, Kristi Kauffmann, age 14, threw herself in front of a train in Manassas and was killed. Many of her fellow students at Osborn Park High School witnessed the incident.

Detective John Urban, who investigated the incident, interviewed Candy Machalske, one of the students who saw the suicide, at the scene. Machalske said that Kristi had joked about committing suicide earlier in the day and had said, immediately before she jumped in front of the train, "it's my parents. I can't handle it. My dad molests me in the morning before school."

Detective Urban then went to the Kauffmann house, and asked the Kauffmanns if he could go through Kristi's belongings. He told them that it was routine for the police to view a suicide victim's belongings, but he did not tell the Kauffmanns about Candy Machalske's statement. At trial, Urban testified that he was searching for anything that might incriminate Kauffmann and that he was afraid the Kauffmanns would not allow him to search if he told them about Machalske's statement.

During Urban's search of Kristi's room, he found a spiral notebook. Urban found one entry, dated March 10, 1986, in which Kristi had written that her father was an "incestive molesting jerk." Urban did not show Kauffmann the notebook, but he asked Kauffmann to follow him to the police station for further questioning.

At the station, Urban confronted Kauffmann with Machalske's statement. Kauffmann expressed concern whether anything he said would be used against him or told to his wife. Urban told him that his wife would not be told and that he would not be arrested. The father then told Urban that he had fondled his daughter. No Miranda warnings were given at that first interview.

Two days later, on April 3, 1986, the Kauffmanns went to the police station for a meeting with a social worker who was scheduled to help the Kauffmanns deal with Kristi's death. Kauffmann was called into a room with Detective Urban and Jean Amos, a social worker. Urban and Amos both testified that Kauffmann was palpably upset, disturbed, and grieving. The daughter's funeral was scheduled for the next morning.

Detective Urban again questioned Kauffmann about the fondling incidents. Urban again told him that his wife would not be told about his statements, but Urban did read the Miranda warnings to him. Kauffmann repeated his statement of April 1, concerning the fondling of his daughter.

The father was indicted for aggravated sexual battery of his daughter. The trial court admitted both Candy Machalske's testimony about what Kristi said before she jumped in front of the train and the spiral notebook diary. Both statements were admitted under the state-of-mind exception to the hearsay rule. The defendant objected to the evidence as inadmissible hearsay. The court relied upon Church v. Commonwealth, 230 Va. 208, 335 S.E.2d 823 (1985), in holding that the statements showed Kristi's state of mind at the time the statements were made and were circumstantial evidence tending to corroborate that the father molested her.

In addition, the court allowed testimony by Bridgette Maloney that during the week of January 10, 1986, she and Kristi Kauffmann discussed the movie Fatal Vision while riding the school bus. Maloney testified that she asked Kristi, "[w]ell, wouldn't it be awful if your father had gone in and killed your mother and you and your family?," and Kristi replied, "[m]y father molests me." Michaelle Kalua, another Osborn Park student, was allowed to testify that two weeks before her death, Kristi Kauffmann told a joke about sexual contact between a parent and a child and then said "... my dad does that, too."

The court also admitted the defendant's statement to the police officer on April 1 and 3, 1986.

The Confessions

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that when the police ask questions of a suspect in custody without administering the prescribed warnings, the answers to the questions must be presumed compelled and the answers must be excluded at trial. Since the police did not give Kauffmann the warnings before he made his first statement, Kauffmann claims that the first statement should have been excluded at trial under Miranda. However, Miranda does not apply to the initial questioning of Kauffmann because he was not then in custody. Kauffmann had followed Detective Urban to the police station in his own car. At the station, Urban told Kauffmann that he did not have to answer any questions. He was told that he was free to leave and that he was not under arrest. In fact, he was not under restraint and he left after the interview. The Miranda warnings are not required merely because the interview takes place at a police station or because the investigation has centered on the person being questioned. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977).

The police did give Kauffmann the Miranda warnings before he made his second statement, which was clearly admissible. Therefore, even if the first statement had been obtained in violation of Miranda, its admission would have been harmless error under the analysis in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). In Elstad, the suspect in a burglary case was arrested at his home and questioned in a non-coercive manner by the police at the house. The police did not give the suspect Miranda warnings, but the suspect admitted participating in the burglary. Later, the police took him to the police station, gave him his Miranda warnings, and asked him to read and sign a confession.

Nevertheless, the confession, even if obtained in full compliance with Miranda, may be inadmissible if it was not voluntary. In order to assess the voluntariness of a confession, an appellate court must conduct an independent review of the circumstances surrounding the confession. Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). In conducting its review, the court "must determine whether, in light of the totality of the circumstances, including not only the details of the interrogation, but also the characteristics of the accused, the statement was the product of an essentially free and unconstrained choice by its maker, or whether the maker's will was overcome and his capacity for self-determination critically impaired." Goodwin v. Commonwealth, 3 Va.App. 249, 253, 349 S.E.2d 161, 163-64 (1986) (citations omitted).

The basis for Kauffmann's claim that his confession was not voluntary is that he "was under severe psychological strain during this time due to his daughter's death." The detective observed that Kauffmann was visibly upset and disturbed, and Jean Amos, the social worker who was present at the second interview, described Kauffmann as grieving and upset. Mrs. Kauffmann stated that her husband was in an awful condition. Lawrence Tracy, a long-time friend of Kauffmann, testified that Kauffmann was "hysterical" from April 1 through April 5 due to the loss of his daughter, and that Kauffmann did not seem to understand what Tracy was saying to him during their conversations at that time.

In conducting the independent review of voluntariness, this court may be aided by the subsidiary findings of facts made by the trial judge. Goodwin, 3 Va.App. at 257, 349 S.E.2d at 166. The trial court found that Kauffmann's statements were voluntarily given. The court did not believe that "the statements made by the officer or the investigator overbore the will of the accused nor attended the voluntariness of the statement to be made." It is important to note that the United States Supreme Court has held that "the Fifth Amendment privilege is not concerned with 'moral and psychological pressures to confess emanating from sources other than official coercion.' " Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Since there was no coercion by the state in this case, Kauffmann's confession was not involuntary so as to constitute a Fifth Amendment violation. We agree with the trial judge's findings that both confessions were voluntary.

The Hearsay Evidence

If admitted to prove the truth of their content, the statements made at trial by Candy Machalske, Bridgette Maloney, and Michaelle Kalua were hearsay because they reported out-of-court statements. However, if the statements were admitted for a purpose other than proving the proposition that Kristi Kauffmann was molested, the statements were not hearsay. See Donahue...