State v. Brown, No. 96,862.

Decision Date16 May 2008
Docket NumberNo. 96,862.
PartiesSTATE of Kansas, Appellant, v. Christopher L. BROWN, Appellee.
CourtKansas Supreme Court

Robert D. Hecht, district attorney, argued the cause, and Jamie L. Karasek, assistant district attorney, and Phill Kline, attorney general, were with him on the briefs for the appellant.

Jennifer C. Roth, of Third Judicial District Public Defender Office, argued the cause and was on the briefs for the appellee.

The opinion of the court was delivered by ROSEN, J.:

This case comes before us on the State's petition for review of the Court of Appeals decision in State v. Brown, 37 Kan.App.2d 726, 157 P.3d 655 (2007). The State sought interlocutory review of a district court decision suppressing Brown's statements to law enforcement officers, in which he confessed his involvement in injuring his 1-month-old child, because the statements were not freely and voluntarily made. The Court of Appeals affirmed the decision of the district court.

The Court of Appeals set out the underlying facts as follows:

"On December 11, 2002, Brown's baby was taken to a Topeka area hospital with a skull fracture, a subdural hematoma, a lacerated liver, and fractured ribs. When questioned about the injuries, Brown stated he found the baby with a 3-year-old brother on the floor beside the crib. The baby's injuries, however, were not consistent with this explanation, and an investigation was initiated. On December 20, 2002, the Kansas Department of Social and Rehabilitation Services (SRS) completed its investigation, finding that the Browns were `substantiated as ... perpetrator[s]' of child abuse. All three children were removed from the Brown home.

"Throughout the child in need of care (CINC) proceedings, the Browns maintained their innocence. Because of this perceived conspiracy to withhold the truth about the baby's injuries, SRS did not recommend reintegration and persistently pressured the Browns to `admit how the injuries to the children were sustained.' Finally, on the date the Browns' parental rights were to be relinquished, Brown went to the sheriff's office, sought out a detective who had been involved in the investigation, and told him he was ready to make a statement. After being Mirandized, Brown gave a statement admitting that on the night in question, the baby would not stop crying, was driving him `freaking crazy,' and Brown `squeezed him too hard.'

"Brown was then charged with aggravated battery and abuse of a child. Before trial, the court held a partial Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing to determine whether the confession was voluntary. The district court initially ruled the confession admissible; but on reconsideration and after review of the records of the CINC proceedings, the court found that `the circumstances under which the ... statement was given violated the Fifth Amendment [to] the United States Constitution and ... was not freely and voluntarily given.'"

Standard of Review

Appellate courts apply a dual standard when reviewing the suppression of a confession. In reviewing a trial court's ruling on a motion to suppress a confession, the appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).

When a defendant claims his or her confession was not voluntary, the prosecution has the burden of proving by a preponderance of the evidence that it was voluntary. The essential inquiry is whether the statement was the product of the accused's free and independent will. The court looks at the totality of the circumstances surrounding the confession and determines its voluntariness. State v. Walker, 283 Kan. 587, 596-97, 153 P.3d 1257 (2007).

Did The District Court Erroneously Suppress Brown's Confession?

The district court found Brown did not freely and voluntarily give his confession. The district court emphasized the pressure that SRS had placed on Brown to admit to having a role in his child's injuries. The State contends on review that only police conduct can constitute coercive influence to obtain a confession; conduct by another state entity, such as SRS, is not prohibited by the Constitution.

The Fifth Amendment to the United States Constitution provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." This privilege against self-incrimination is made applicable to the states through the Fourteenth Amendment Due Process Clause. Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Malloy instructs that the government is "constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth." 378 U.S. at 8, 84 S.Ct. 1489. The privilege guarantees "the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence." 378 U.S. at 8, 84 S.Ct. 1489.

The privilege may be raised in any proceeding, civil or criminal, formal or informal, where testimonial evidence may incriminate the individual in future criminal proceedings. Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). In Hoffa v. United States, 385 U.S. 293, 304, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), reh. denied 386 U.S. 940, 87 S.Ct. 970, 17 L.Ed.2d 880 (1967), the Supreme Court held that compulsion is a necessary element of compulsory self-incrimination. A presumption of compulsion exists when a person is subjected to custodial interrogation, State v. Hebert, 277 Kan. 61, 71, 82 P.3d 470 (2004), and compulsion exists when a person is ordered to produce incriminating evidence, Baltimore Dept. of Social Servs. v. Bouknight, 493 U.S. 549, 554-55, 110 S.Ct. 900, 107 L.Ed.2d 992 (1990), or threatened with serious penalties if the evidence is not produced, Minnesota v. Murphy, 465 U.S. 420, 434-35, 104 S.Ct. 1136, 79 L.Ed.2d 409, reh. denied 466 U.S. 945, 104 S.Ct. 1932, 80 L.Ed.2d 477 (1984).

The State cites language in Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), for the principle that the voluntariness of a confession depends on the absence of police overreaching. In Connelly, the Court held that coercive police activity is necessary for finding that a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment. 479 U.S. at 167, 107 S.Ct. 515. "The voluntariness of a waiver of [the Fifth Amendment] privilege has always depended on the absence of police overreaching, not on `free choice' in any broader sense of the word." 479 U.S. at 170, 107 S.Ct. 515.

It would require a very narrow interpretation for us to find that Connelly requires that only police conduct is relevant to determine whether a confession was voluntary. No other "State actors" were involved in the Connelly confession. Moreover, when discussing due process considerations, Connelly reiterated that there must be a link between the coercive activity of the State and the defendant's resulting confession. 479 U.S. at 165, 107 S.Ct. 515.

Regarding the Fifth Amendment, the Connelly Court explained:

"The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion. See United States v. Washington, 431 U.S. 181, 187, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977); Miranda [v. State of Arizona], supra, 384 U.S. [436], at 460 [86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ]. Indeed, the Fifth Amendment privilege is not concerned `with moral and psychological pressures to confess emanating from sources other than official coercion.' Oregon v. Elstad, 470 U.S. 298, 305, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)." (Emphasis added.) 479 U.S. at 170, 107 S.Ct. 515.

The State also cites Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), which involved only conduct by police. The Haynes Court held that "`the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort.'" (Emphasis added.) 373 U.S. at 513, 83 S.Ct. 1336 (quoting Wilson v. United States, 162 U.S. 613, 623, 16 S.Ct. 895, 40 L.Ed. 1090 [1896]).

The State cites as additional authority for the argument that coercive State conduct is limited to conduct by the police the case of Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976). In Hutto, without mentioning law enforcement, the Supreme Court set forth the following test for voluntariness:

"The test is whether the confession was "`extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.'" Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 42 L.Ed. 568 (1897); see Brady v. United States, supra, [397 U.S. 742,] at 753 [90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ].... The confession [in the instant case] thus does not appear to have been the result of "`any direct or implied promises'" or any coercion on the part of the prosecution, and was not involuntary. Bram v. United States, supra, [168 U.S.,] at 542-543 ." (Emphasis added.) 429 U.S. at 30, 97 S.Ct. 202.

The cases cited by the State do not persuade us that coercive conduct must be induced by law enforcement before it violates the Fifth Amendment. The Fifth Amendment is violated "when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered." Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) (threat of loss of public contracts may constitute coercive State conduct).

The general rule is that an individual must...

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