State v. Baston, 75203

• Citation: 261 Kan. 100,928 P.2d 79
• Decision Date: 06 December 1996
• Docket Number: No. 75203,75203
• Parties: STATE of Kansas, Appellant, v. Russell D. BASTON, Appellee.
• Court: United States State Supreme Court of Kansas

Page 79

928 P.2d 79

261 Kan. 100

STATE of Kansas, Appellant, v. Russell D. BASTON, Appellee.

No. 75203.

Supreme Court of Kansas.

Dec. 6, 1996.

Syllabus by the Court

1. In reviewing a trial court decision regarding the suppression of evidence, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard of review and reviews the ultimate legal decision drawn from those facts de novo with independent judgment.

2. If the findings of the trial court on a motion to suppress evidence are based on substantial evidence an appellate court, on review, will not substitute its view of the evidence for that of the trial court.

3. In determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible is on the prosecution, and the required proof is by a preponderance of the evidence.

4. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; 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.

5. In considering the effect of a promise made by the police to an accused during an interrogation, various factors have been recognized as worthy of consideration in determining the voluntariness of a subsequent confession. To render such a confession involuntary, it is generally held that the promise must concern action to be taken by a public official, that the promised action must be such as would likely cause the accused to make a false statement to obtain the benefits of the promise, and the promise must be made by a person whom the accused reasonably believes to have the power or authority to execute the same.

John F. Wilcox, Jr., Assistant District Attorney, argued the cause, and Gayle B. Larkin, Assistant District Attorney, Mark A. Knight, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellant.

Randy McGrath, Lawrence, argued the cause and was on the brief, for appellee.

DAVIS, Justice:

In this criminal case the trial court suppressed the defendant's statements made to officers during interrogation based upon promises made to the defendant in exchange for his statements. Upon interlocutory appeal by the State, the Court of Appeals upheld the suppression and denied the State's appeal in an unpublished decision filed April 26, 1996. We granted the State's petition for review. Because there is substantial competent evidence supporting the trial court's suppression, we affirm.

Three men attacked the victim, Gary McCoy, at his rural trailer home. According to McCoy, the men first restrained and beat him, ransacked his home in search of money and drugs, and forced him to walk to his barn, where they stole two sacks of marijuana. The defendant, Russell D. Baston, was charged with aggravated kidnapping, K.S.A. 21-3421, aggravated robbery, K.S.A. 21-3427, and aggravated battery, K.S.A. 21-3414(a)(1)(A). McCoy was unable to fully identify the three men. He testified at the preliminary hearing that he was 70% sure that the defendant was one of the attackers. Detective Robert VanHoesen testified to the content of his interview with the defendant, which amounted to a confession of the defendant's involvement. The defendant was bound over for trial.

The defendant filed a motion to suppress the confession. He argued that his statements were involuntary because they were made in reliance on a promise of benefits made by one or more of the police investigators, that promise being a reduction of charges in the present case. The following facts and circumstances involving the defendant's confession and statements were disclosed in the suppression hearing.

After being arrested, the defendant was booked at the Douglas County jail. He immediately requested to speak to Officer Bill Shepard to discuss the substance of the charges. As Shepard was on vacation, Officer John D. Hanson was called to speak with the defendant. Hanson stated that when he first met the defendant alone in a jail interview room, the defendant was emotional and crying. The defendant requested to see his girlfriend, Billie Jo Carter. Hanson contacted Lieutenant Suitt in the sheriff's department to arrange a visit. In addition, Hanson allowed the defendant to use the cellular telephone that the officer carried to call Carter.

Following the telephone call, Hanson advised the defendant of his Miranda rights. The defendant waived his rights. The interview between Hanson and the defendant lasted approximately 2 hours. Hanson testified that he made no threats or promises to the defendant during the interview. At most, Hanson testified that he would bring the defendant's cooperation to the attention of the District Attorney.

During the interview, the defendant spoke about a Johnson County burglary which he was involved in, as well as the McCoy case. Hanson was primarily interested in the Johnson County case. As Hanson was not familiar with the McCoy case, he suggested that the defendant speak with Douglas County Detective Robert VanHoesen. Hanson testified:

"We initially spoke about a case that took place in Johnson County where Russell and Amerine [a codefendant] and another--Amerine and himself broke into a house and then we talked about the McCoy case and I told him I wasn't all that familiar with the case, the details, and that Detective VanHoesen from the Sheriff's department was working the case and that he would wish to interview him. First he says he had heard bad things about VanHoesen, and I explained that VanHoesen was a good fellow and would take care of him and wouldn't mistreat him and he agreed to speak with Detective VanHoesen at that point."

At the hearing on the motion to suppress, Hanson was questioned about any promises he might have made to the defendant.

"Q. After you told Mr. Baston that you were only interested in the gun case or the burglary in Johnson County, did you tell him that you could get the aggravated kidnapping charge dismissed?

"A. No. I am in no position to do that.

"Q. I understand you are not in any position to do it, but at any time, did you infer that you could?

"A. No. The only thing that was discussed about that case is he told me that the police were claiming things that he hadn't done and I told him it's his chance to tell his side of the story because there are people out there besides just Mr. McCoy that are telling us different than his involvement, and at that point, I said, 'Here is your chance to tell me what really took place through your eyes and I would relay that to the District Attorney's Office.' "

Baston, however, repeatedly testified that Hanson promised to drop the McCoy charges in exchange for his help on other crimes. He testified that in his initial interview with Hanson, which was notrecorded on videotape, Hanson assured him that in exchange for information concerning the Johnson County gun case and other information, Hanson would "see to it that my aggravated kidnapping was dropped off my charges and aggravated part was dropped off of it." This would happen if "I was to tell them where the guns were taken to and what happened in that case and what I knew about the Gary McCoy case and any other stuff that I might know about."

Hanson contacted VanHoesen to interview the defendant. The second interview was held in the sheriff's department interview room about a half hour after the first interview. Portions of this interview were recorded on videotape. The tape was later admitted as evidence at the suppression hearing.

At the beginning of the second interview, VanHoesen warned the defendant of his rights, which the defendant again waived. Both VanHoesen and Hanson questioned the defendant this time, but neither officer was present for the entire interview.

In the second interview, VanHoesen thoroughly questioned the defendant regarding the McCoy case, among many other unsolved local burglaries. The defendant answered all questions, naming friends and acquaintances involved in past crimes. He also confessed to the crimes against McCoy, implicating the two other men involved.

At some point during the second interview, Billie Jo Carter came to meet the defendant. Carter brought a coat that had been stolen in a separate and prior burglary to turn the coat over to the police. When she arrived, only the defendant and Hanson were in the room. During the time that she was in the interview room the video camera was shut off. She testified that promises were made:

"Q. Who said anything to you first, if you recall?

"A. Russell, when I first came in the room. He asked ifI knew why he was there, and I said, 'no,' and he said that he wanted to see if it was all right with me to give them--talk to John Hanson and tell him about other cases that they needed help to solve, and if they did, he was going to help him by dropping some of the charges. And I said, 'Is that all you got to do is talk,' and he said, 'Well, yeah,' and then John Hanson said, 'Well, there is a slight possibility you might have to wear a wire,' and I said if he had to wear a wire, I didn't want him in it and I didn't want him wearing a wire, and he said he wouldn't have to wear a wire and Russell said if I didn't care that he talked, told the cops what was going on, to get his aggravated kidnapping dropped and the aggravated part charges taken off his case, he would talk to them, and John Hanson said yes, that is what was going on.

....

"Q. And was Russell asking your permission, so to speak, to do that?

"A. Yeah, to make sure--if he talked to the cops and told him about other cases, that...