State v. Baker, 51229
| Decision Date | 08 February 1980 |
| Docket Number | No. 51229,51229 |
| Citation | 4 Kan.App.2d 340,606 P.2d 120 |
| Parties | STATE of Kansas, Appellant, v. Terry R. BAKER, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Rules for determining admissibility of a confession under K.S.A. 60-460(F ) are reviewed and applied.
2. The fact that an accused had been drinking and using drugs immediately prior to making a confession does not per se establish involuntariness of that confession.
3. When an accused freely and voluntarily solicits promises, the accused cannot be heard to say in accepting the promise that he was the victim of compelling influence.
4. In an interlocutory appeal by the State from an order suppressing two confessions given by defendant to law enforcement officers, it is Held that the trial court erred in suppressing the confessions based upon findings that (1) the State had not sustained its burden of proof of showing that the defendant was capable of understanding what he said; and (2) the confessions were made as the result of promises by a deputy and that defendant's belief in the promises could likely cause the accused to make false statements in order to obtain the benefits promised.
James W. Clark, County Atty. and Robert T. Stephan, Atty. Gen., for appellant.
R. Michael Latimer of Skoog & Latimer, Ottawa, for appellee.
Before PARKS, P. J., and ABBOTT and SWINEHART, JJ.
This is an interlocutory appeal by the State pursuant to K.S.A.1979 Supp. 22-3603 from an order sustaining the defendant's motion to suppress two confessions given by the defendant to law enforcement officers.
The defendant, Terry R. Baker, is charged with thirteen counts of burglary. At issue are two separate confessions made by defendant on the night of April 3, 1979, after he and his friend, Tim Parker, voluntarily accompanied Det. James H. Raby, an officer with the Ottawa Department of Public Safety, to the Franklin County Sheriff's Department. The defendant was not arrested at any time material to this decision. Defendant was placed in the sheriff's private office, where he remained alone for approximately ten minutes. Det. Brad L. Gilges, an officer with the Franklin County Sheriff's Department, entered the sheriff's office. Gilges and the defendant had attended grade school together. Defendant was given the Miranda warning. Det. Gilges told defendant that the coat defendant was wearing matched the description of a coat taken in a burglary, including the initials "V.A.N." written in ink on the label. Defendant denied any knowledge of that burglary. Det. Gilges then confronted the defendant with evidence which was found at the scene of a burglary in the form of a piece of paper that had the name "Sherry" and a phone number on it. Defendant was informed that the phone number was that of Sherry Wall, and she had stated that she had given a piece of paper exactly like it to defendant. The defendant replied, "You've got me." The defendant then stated he would tell everything if Gilges would promise to aid him in getting mental help. Considerable controversy exists as to what was said concerning both the request for mental help and the replies to that request.
The defendant then gave a recorded statement to Det. Gilges which was followed by a second recorded statement to Det. Raby. Both statements were subsequently transcribed. The statements go into considerable detail, giving the dates and times of numerous violations of criminal laws by the defendant, including specific details of how entry was made, descriptions of the entrance to buildings and items taken. None of the conversation was taped prior to the defendant's agreeing to give a confession. It is difficult to comprehend why the entire interview was not tape recorded, as the failure to record the entire interview invariably leads to claims that prohibited conduct occurred prior to the use of a recording device.
The trial court suppressed defendant's confessions as hearsay based on K.S.A. 60-460(F ), which states in pertinent part:
"In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged (is admissible) if, and only if, the judge finds that the accused when making the statement was conscious and was capable of understanding what he or she said and did, and that the accused was not induced to make the statement . . . by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same."
The trial court sustained the motion to suppress the confessions, finding that (1) the State had not sustained its burden of convincing the court that defendant was capable of understanding what he said, regardless of the truth or falsity of his confessions; and (2) the confessions were made as the result of promises by a deputy whom the defendant reasonably believed to have the authority to carry them out, and that defendant's belief in the promises could likely cause him to make false statements in order to obtain the benefits promised.
To be admissible in evidence as an exception to the hearsay rule under K.S.A. 60-460(F ), a confession or extrajudicial statement by an accused must have been freely and voluntarily made. The voluntary nature of a statement must be established by a preponderance of the evidence, and by statute (K.S.A. 22-3215(4)) the burden is on the prosecution to prove the statement is voluntary and admissible. State v. Kanive, 221 Kan. 34, 35, 558 P.2d 1075 (1976). Furthermore, when there is a conflict in testimony given by the defendant and that produced by the State as to the voluntary character of a confession, it is to be determined like any other question of fact; and although a finding by the trial court is open to review, it has a much better opportunity to ascertain the truth than that afforded to this court and its conclusion, if supported by substantial competent evidence, cannot be disturbed. Holt v. State, 202 Kan. 759, 764-65, 451 P.2d 221 (1969).
Is there sufficient competent evidence to support the trial court's finding that defendant, by virtue of his drugged and intoxicated condition, was not capable of understanding what he said and did when he gave the confessions? We think not. We note that at the conclusion of the evidence the trial judge stated:
No additional evidence was admitted following the above comments and the hearing ended at that point. The trial judge in his order of suppression obviously changed his mind. Although a trial judge has every right to change a tentative conclusion, we are of the opinion he was right the first time. Even viewing the evidence in a light most favorable to the defendant, ignoring the strong evidence of defendant's mental alertness and lack of intoxication and his detailed recall of the crimes in his recorded confessions (as we are required to do under our applicable scope of review), there still exists no substantial competent evidence to support a finding of mental incompetency.
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