State v. Brunner

• Decision Date: 03 March 1973
• Docket Number: No. 46887,46887
• Citation: 507 P.2d 233,211 Kan. 596
• Parties: STATE of Kansas, Appellee, v. Gerald D. BRUNNER, Appellant.
• Court: Kansas Supreme Court

Page 233

507 P.2d 233

211 Kan. 596

STATE of Kansas, Appellee, v. Gerald D. BRUNNER, Appellant.

No. 46887.

Supreme Court of Kansas.

March 3, 1973.

Syllabus by the Court

1. A defendant's statements to a police officer are not automatically inadmissible for failure to warn him of his rights unless the statements are the product of custodial interrogation.

2. A person who has not been arrested is not in police custody unless there are significant restraints on his freedom of movement which are imposed by some law enforcement agency.

3. A police interview of an accident victim at a hospital is not 'custodial interrogation' unless his confinement is police-instigated or controlled for custodial purposes.

4. Whether a defendant's statement is voluntary is a question of fact to be determined in the first instance by the trial court in a separate hearing held for that purpose.

5. The mental condition of a defendant at the time he makes a statement is relevant to the issue of voluntariness but is not necessarily conclusive; its weight is for the trier of fact.

6. A trial court's determination of the admissibility of a statement by the defendant will be upheld on appeal if it is supported by substantial competent evidence.

7. Taking a blood sample from a person suspected of driving while under the influence of intoxicating liquor is a 'search' within the meaning of the Fourth Amendment.

8. A warrantless search of a person involving penetration of the body may constitutionally be made either by voluntary consent or under some circumstances as a reasonable incident to a lawful arrest.

9. Under K.S.A.1972 Supp. 8-1001 refusal to submit to a blood test leads to a

possible suspension of one's driver's license only when a driver is arrested or otherwise taken into custody for an offense involving the operation of a motor vehicle while under the influence of intoxicating liquor.

10. Consent to a blood test is not voluntary when obtained from a person not under arrest or otherwise in custody by a threat to suspend his license for refusal.

11. In a prosecution for involuntary manslaughter arising out of the operation of a motor vehicle while under the influence of intoxicating liquor it is held: (1) certain statements made by the defendant concerning his drinking and his operation of the vehicle were properly admitted; and (2) a blood sample was taken without the valid consent of the defendant and the result of the subsequent blood alcohol test was therefore erroneously admitted into evidence.

John F. Christner, Abilene, argued the cause and was on the brief for appellant.

Max M. Hinkle, County Atty., argued the cause and was on the brief for appellee.

FOTH, Commissioner.

Gerald D. Brunner, the defendant-appellant, was convicted of involuntary manslaughter as the result of a one-car accident in which two passengers in his automobile were killed. He was acquitted of a charge of illegally transporting an open bottle of liquor arising out of the same incident. On appeal he alleges error in the introduction into evidence of admissions elicited from him and the results of a blood alcohol test. Both the admissions and the blood sample were procured while he was hospitalized and in a state of shock and confusion shortly after the accident. Both issues were raised on a pre-trial motion to suppress, at trial, and by motion for a new trial.

The accident happened about 9:30 p. m. on November 21, 1970, on a county road about eight miles west of Herington, near Hope, Kansas. Defendant, a friend named Mike Wandgrin, two young women, and a baby were all en route from Herington to Abilene in defendant's car when it went off the road. One of the young women died at the scene and the other a few hours later at the hospital.

The defendant was observed by the ambulance driver to be 'in the vehicle lying between the front and back seat.' He was taken to the Herington hospital where shortly after 10:30 he was diagnosed as suffering from acute circulatory shock, mild brain concussion and a broken hand. As described by the attending physician, he 'was experiencing pain, he was conscious, confused and somewhat irrational.' He was given a sedative, and between 11:00 and 12:00 his confusion and irrationality abated somewhat.

Sometime between 11:30 and midnight trooper John Ramsey of the highway patrol arrived at the hospital. He had been to the scene of the accident and there had received from the sheriff two bottles said to have come from defendant's car. One was an empty whiskey bottle and the other was an open bottle of peppermint schnapps. Trooper Ramsey asked the doctor if he could interview the defendant, and upon receiving the doctor's permission proceeded to do so.

The defendant told the officer that he was driving the car at the time of the accident, but stated that only he and Wandgrin were in the car, and that they were going toward Herington, not away from it as the other evidence (and defendant's own later testimony) all indicated. He admitted drinking six or seven beers earlier that day, and some of the schnapps on the road; he denied drinking anything from the empty whiskey bottle. He also said he was driving about 60 miles per hour, couldn't negotiate a curve, and went off the road. The entire interview lasted about fifteen minutes.

At trial trooper Ramsey gave the substance of the foregoing conversation with defendant. He also testified that defendant appeared very irrational and confused, but appeared to 'know what he was doing' when he signed a blood test consent form, to be discussed below. The record does not show whether Ramsey also testified, as he had on the motion to suppress, that at the time of the interview defendant 'didn't appear to know where he was,' that he 'kept indicating to the officer that he was in jail and wanted to know if the officer could get him released,' and that 'it appeared to Officer Ramsey that the defendant did not know to(o) much of what happened or where he was.' The oral statements elicited at that time form the basis for defendant's first claim of error.

During the interview Officer Ramsey also asked the defendant if he would submit to a blood alcohol test. Defendant asked what would happen if he refused, and Ramsey told him a report would be sent to the motor vehicle department and his driver's license would be suspended. Defendant thereupon signed a consent form and a technician drew a blood sample. At trial the results, over defendant's objection, were shown to be 0.164% alcohol by weight. This is defendant's second claim of error.

As to the oral admissions, defendant first points out that he was concededly never given any type of 'Miranda' warning, and contends that this failure renders his statements ipso facto inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. That case mandates such an automatic result if the statements were the product of 'custodial interrogation,' as defined therein:

'. . . By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' (Id., 384 U.S. at 444, 86 S.Ct. at 1612.)

In a footnote to this statement the Court observed that 'This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.' (The reference, of course, is to Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.)

It is true that in our case trooper Ramsey testified that at the time he talked to defendant 'the focus of the investigation had narrowed down to the defendant as the operator of the vehicle in question.' But this is not the same as saying that the defendant was in custody. The trooper was emphatic in his statements, each time he testified, that the defendant was not 'arrested' the night of the accident and was not 'in custody.' In fact, he never was formally arrested. When the present charge was filed, two days later, a summons was mailed to defendant at his home, and he subsequently appeared in response thereto.

We have in the past recognized that Miranda operates in all its full glory only when the accused is in fact in some sort of police custody. State v. Porter, 201 Kan. 778, 443 P.2d 360, cert. den. 393 U.S. 1108, 89 S.Ct. 919, 21 L.Ed.2d 805; State v. Frizzell, 207 Kan. 393, 485 P.2d 160. We have not previously had before us the present situation, where the accused may find himself 'deprived of his freedom of action,' but only by reason of his physical condition and not by any action of the police. Other courts have dealt with the problem, and have reached varying results, depending largely on the particular facts.

In two cases the Alabama court found a hospitalized suspect was in custody, in one because he was being 'detained' in the hospital (Robinson v. State, 45 Ala.App. 74, 224 So.2d 675) and in the other because the police had taken him there and the court felt that he was not free to leave without the likelihood of police intervention (Howard v. State, 44 Ala.App. 595, 217 So.2d 548).

In State v. Ross, 183 Neb. 1, 157 N.W.2d 860, a participant in a shooting affray was hospitalized in shock and under sedation. The fact that he was under constant police 'observation' was held to render police questioning 'custodial interrogation.'

In each of these cases the court found from the factual circumstances that the actions of the police amounted to taking the accused into custody, regardless of how the police might have characterized the situation. In each the custodial net of the police had been cast about the suspect.

Going even further, the Tennessee court has found 'custodial interrogation' from the mere fact that the hospitalized person was suspected of being the driver of the death car; his freedom of activity or restraints thereof were not deemed relevant. Vandegriff v. State, 219 Tenn. 302, 409 S.W.2d 370. If we read Miranda...