State v. Carty, 53128

• Decision Date: 08 May 1982
• Docket Number: No. 53128,53128
• Citation: 231 Kan. 282,644 P.2d 407
• Parties: STATE of Kansas, Appellee, v. Robert Lee CARTY, Jr., Appellant.
• Court: Kansas Supreme Court

Page 407

644 P.2d 407

231 Kan. 282

STATE of Kansas, Appellee, v. Robert Lee CARTY, Jr., Appellant.

No. 53128.

Supreme Court of Kansas.

May 8, 1982.

Syllabus by the Court

1. If police interrogation of a person in custody continues and a statement is taken in the absence of an attorney after the person has requested an attorney, a heavy burden rests on the State to demonstrate that the person knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.

2. When the admissibility of an in-custody statement, made after demand for an attorney, is challenged on appeal, this court must decide whether the State has adequately proved: (1) That the accused knowingly and intelligently waived his right to retained or appointed counsel; (2) that interrogation ceased for an appreciable period when the accused requested consultation with an attorney; and (3) that the statements made by the police after the request for counsel did not amount to questioning, its functional equivalent, or statements known to be likely to produce an incriminating response.

3. When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.

4. Evidence of other wrongdoing which tends to show no more than a propensity or disposition to commit that wrong is expressly prohibited by K.S.A. 60-455.

David L. Thompson, of Fitzpatrick & Thompson, Independence, argued the cause and was on the brief for appellant.

Jeffrey A. Chubb, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

MILLER, Justice:

The defendant and appellant, Robert Lee Carty, Jr., was convicted of one count of arson of the Coffeyville Memorial Hall, K.S.A. 21-3718, and one count of aggravated arson of the Caney Grade School, K.S.A. 21-3719, by jury trial in Montgomery District Court. He was sentenced to concurrent terms of ten to forty years and fifteen years to life. On appeal, his principal claims of error are that the trial court erred in admitting statements made by the defendant to a deputy sheriff during interrogation, after defendant had requested counsel, and in admitting testimony of his confession to an act of arson seven years earlier.

On July 18, 1980, Carty was employed as the sole custodian of the Coffeyville Memorial Hall. He discovered a fire that day and turned in the alarm about 10 o'clock a. m. Carty was the only person in the building; the fire started in a storage area under the bleachers. The building was destroyed. An investigation conducted by the Coffeyville fire department with the assistance of an investigator from the State Fire Marshal's office concluded that the fire was caused by a defective light socket.

Carty was next employed as a custodian for the Caney Grade School. On September 10, 1980, a fire broke out about 8:30 o'clock a. m. The defendant discovered the fire and sounded the alarm. All teachers and pupils escaped without injury. The fire started in the janitor's room, just off the gymnasium. The Fire Marshal's office conducted an investigation. The defendant, when interviewed, gave conflicting stories as to whether he was in the janitor's room on the morning of the fire. No one had seen him in that room, but he could have entered or left the janitor's room by a route behind the bleachers which would not have been open to the view of others in the building. The investigators concluded that the fire was set, either intentionally or accidentally; all other causes were eliminated.

A second investigation of the Memorial Hall fire, conducted by a different investigator, uncovered evidence of flammable liquid at three points of origin. A background check on the defendant disclosed that he was wanted for parole violation in Texas. He was arrested for Texas authorities on that charge on September 19, 1980, and was confined in the Montgomery County jail. Investigation of both fires continued, and Carty was the prime and the only suspect.

Deputy Sheriff Wilson testified that he brought Carty from the jail to the county attorney's office on September 22, 1980, to question him about the fires. The deputy read the Miranda warnings and announced that he was going to ask some questions about the fires. The officer testified that Carty stated that:

"(I)f I was there to charge him with the fire of the Caney School and possibly the Memorial Hall ... that he wanted an attorney. And I advised him that I was not there for that purpose, all I wanted to do was talk to him."

Deputy Wilson made a written report of the interview. He indicated therein that Mr. Carty had been advised of his rights before the interview started. The report continues:

"The first thing he said, if you charge (me) with the fire, I will sue you and I want a lawyer and won't tell you anything."

According to the deputy sheriff, Carty stated that he did not want to discuss the fires. He did not insist on the presence of an attorney, and he did not say he wanted to stop or terminate the conversation, so the officer continued with the interview. He did not advise Carty that he was the prime suspect. Throughout the interview, Carty did not admit setting the fires, but stated in substance that sometimes when he was depressed he did things that he could not later remember, and that he could have either accidentally or purposely set the fires at Memorial Hall or the Caney school, and not remember doing so. Carty also said that sometimes he became depressed as a result of constant criticism that he received at his place of employment, and he admitted that he was somewhat depressed on the day of the Caney school fire because he had some problems with the supervisors. Other facts will be developed during discussion of the issues raised.

We turn now to the first issue: Did the trial court err in admitting the oral statements made by the defendant to Deputy Wilson, after the defendant had requested counsel? We discussed the applicable rules relating to in-custody interrogation at length in the recent case of State v. Newfield, 229 Kan. 347, 623 P.2d 1349 (1981). During the interrogation which resulted in the challenged confession, Newfield had stated that he wanted to talk to an attorney before he talked to the agents any more. The questioning ceased; Newfield was offered the use of a telephone to call an attorney of his choice, and he was also told that he could have an attorney appointed for him. He declined to call an attorney, and stated that he did not want an appointed attorney. Some time later, he said, "Get your pencil. I'm going to tell you all about it." His confession followed. We held that under the totality of the circumstances, the statement was voluntarily, knowingly and intelligently made, and thus was admissible in evidence. We said:

"If police interrogation of a person in custody continues and a statement is taken in the absence of an attorney after the person has requested an attorney, a heavy burden rests on the State to demonstrate that the person knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." "In determining the voluntariness of a confession, it is to be viewed in light of the totality of the circumstances, including the following factors: (1) The duration and manner of interrogation; (2) the accused's ability upon request to communicate with the outside world; (3) the accused's age, intellect and background; and (4) the fairness of the officers in conducting the interrogation. Essential to the inquiry is the determination that the statement was the product of the free and independent will of the accused. If the accused was not deprived of his free choice to admit, deny or refuse to answer, the statement may be considered voluntary."

"In cases of in-custody interrogation, police officers have the duty to take effective means to notify a person of his right to silence and to assure that the exercise of that right will be scrupulously honored. The critical safeguard required is the person's right to cut off further interrogation elicited by express questioning or its functional equivalent in the form of any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response." 229 Kan. 347, Syl. PP 1, 2, 3, 623 P.2d 1349.

We also said that when the admissibility of an in-custody statement, made after demand for an attorney, is challenged on appeal, this court must decide whether the State has adequately proved:

"(1) that the accused knowingly and intelligently waived his right to retained or appointed counsel;

(2) that interrogation ceased for an appreciable period when the accused requested consultation with an attorney; and

(3) that the statements made by the police after the request for counsel did not amount to questioning, its functional equivalent, or statements known to be likely to produce an incriminating response." 229 Kan. at 355, 623 P.2d 1349.

Carty in effect demanded counsel if he was going to be charged with arson. He was informed that the purpose of the deputy was not to charge him with the offenses, but merely to talk to him. At that time, unbeknown to Carty, the Texas warrant on which he was detained was discovered in the course of the Caney and Coffeyville arson investigations; Carty was the sole, prime and only suspect in the arson cases; the purpose of the interrogation was to secure information helpful to the State in its arson investigation. As surely as day follows night, Carty was going to be charged with arson. Carty was not offered the use of a telephone to call an attorney; he was not specifically advised that he could then have appointed counsel; and the interrogation did...