State v. Coleman

• Decision Date: 30 August 2002
• Docket Number: No. 86,968.,86,968.
• Citation: 56 P.3d 290,30 Kan. App.2d 988
• Parties: STATE OF KANSAS, Appellee, v. RASHEEM A. COLEMAN, Appellant.
• Court: Kansas Court of Appeals

30 Kan. App.2d 988

56 P.3d 290

STATE OF KANSAS, Appellee, v. RASHEEM A. COLEMAN, Appellant.

No. 86,968.

Court of Appeals of Kansas.

Opinion filed August 30, 2002.

Patrick Dunn and Craig Durham, assistant appellate defenders, and Steven R. Zinn, deputy appellate defender, for appellant.

Boyd K. Isherwood, assistant district attorney, Nola Foulston, district attorney, and Carla J. Stovall, attorney general, for appellee.

Before JOHNSON, P.J., LEWIS, J., and JONES, S.J.

JOHNSON, J.:

Following a jury trial, Rasheem A. Coleman was convicted of attempted premeditated first-degree murder and aggravated robbery; he was sentenced to a controlling term of 346 months' imprisonment. He timely appealed his conviction and sentence, alleging the district court erred by: (1) refusing to exclude his statements to law enforcement; (2) failing to give certain jury instructions; and (3) allowing the inclusion of juvenile adjudications in his criminal history score. We reverse and remand for a new trial.

The charges in this case arose from the robbery of a store in Wichita called Gold and Diamond Traders. Two men, later identified as Aaron "Spud" Douglas and Mario "Ocho" Merrills, entered the store and demanded money and jewelry. The robbers took approximately $450 cash and various items of jewelry. During the course of the robbery, Merrills shot the owner of the store in the chest.

Coleman's involvement in the robbery was as an aider and abettor. Douglas and Merrills discussed the robbery with Coleman beforehand; Coleman knew the owner of the store and had been a customer. Indeed, Coleman alerted Douglas and Merrills to the fact that the owner of the store had a gun on the premises. Merrills then made the statement that if the owner pulled a weapon on him, it would be "`the last mistake he makes.'"

Coleman and his girlfriend, Tiffany Mayson, drove Douglas and Merrills to the store and waited outside while the robbery unfolded. The group had walkie-talkies to communicate: One was in the car with Coleman and Mayson, and the other was in the store with Douglas and Merrills. Presumably in exchange for his involvement in the robbery, Coleman received 7 to 10 of the rings which were taken from the store.

Coleman was eventually taken into custody, charged with aggravated robbery and attempted first-degree murder, arraigned, and appointed counsel. Mayson, who had apparently not been charged with any offense, repeatedly attempted to contact Deputy District Attorney Kim Parker, who had filed the complaint in Coleman's case. Unbeknownst to Mayson, Coleman's case had been reassigned to Assistant District Attorney David Kaufman. Mayson's messages indicated she wanted to discuss possible plea arrangements for Coleman. While Coleman had not asked Mayson to call Parker, he was aware of her activities.

Thinking it would be inappropriate to return Mayson's telephone calls, Parker asked the Wichita Police Department to tell Mayson to redirect her inquiries to Assistant District Attorney Kaufman. Two police detectives eventually spoke with Mayson's grandmother, who informed them that Mayson was "laying low." The detectives asked the grandmother to pass along the message that Mayson's questions should be addressed to Kaufman, not Parker. When the grandmother mentioned to the detectives that Coleman wanted to cooperate or make a deal, they informed her that Coleman had been appointed counsel and if Coleman wanted to talk, he had to contact them.

The grandmother's recollection of the conversation was somewhat different. According to her, the detectives told her that they thought Coleman was a good kid and did not have anything to do with the robbery. She also claimed that the detectives told her that they wanted Coleman to contact them so they could make a deal. She then relayed that message to Coleman.

Based on this information, Coleman contacted one of the detectives the following day. Coleman waived his Miranda rights and acknowledged, in writing, that he had initiated the contact with the police. In a taped statement, Coleman admitted his involvement in the robbery.

Defense counsel filed a motion to suppress the tape, arguing that the detectives improperly induced Coleman to contact them and confess. This argument was based on Mayson's grandmother's version of the events surrounding her conversation with the detectives. The trial court denied Coleman's motion, noting that the issue came down to the credibility of witnesses. The judge opined that Coleman was "obviously bright and intelligent" and that "he is not naive of [the] criminal justice system." However, the trial court found that the police did nothing improper during their conversation with Mayson's grandmother and that Coleman and Mayson solicited the police interview. The tape was admitted into evidence at trial over defense counsel's renewed objection. Coleman was ultimately convicted of both aggravated robbery and attempted first-degree murder. At sentencing, the trial judge imposed the "high" presumptive sentence on both counts and ran the sentences consecutively. Coleman's criminal history score of C included prior juvenile adjudications.

CONFESSION

Coleman challenges the district court's denial of his motion to suppress his taped statements to the police. Specifically, Coleman argues that the police contact with Mayson's grandmother, who, in turn, contacted him, improperly induced him to waive his right to counsel and confess to the charged offenses.

Upon the hearing of a motion to suppress evidence, the State bears the burden of proof. When reviewing a trial court's decision as to the suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court. The ultimate determination of the suppression of evidence, however, is a legal question requiring independent appellate determination. See Arizona v. Fulminante, 499 U.S. 279, 285-87, 113 L. Ed.2d 302, 111 S. Ct. 1246 (1991); State v. Vandiver, 257 Kan. 53, 57-58, 891 P.2d 350 (1995).

A criminal defendant's right to counsel is rooted in both the Fifth and Sixth Amendments to the United States Constitution. The Fifth Amendment protection against self-incrimination provides the foundation for the right to counsel during custodial interrogations. Edwards v. Arizona, 451 U.S. 477, 481-82, 68 L. Ed.2d 378, 101 S. Ct. 1880 (1981); Miranda v. Arizona, 384 U.S. 436, 470, 16 L. Ed.2d 694, 86 S. Ct. 1602 (1966). Once a suspect has invoked his or her right to counsel during questioning, the police may not interrogate him or her unless the accused initiates further communications, exchanges, or conversations with the police. Edwards, 451 U.S. at 484-85. The Sixth Amendment provides the accused with the right of effective assistance of counsel and attaches at the initiation of adversary judicial proceedings. United States v. Gouveia, 467 U.S. 180, 187-88, 81 L. Ed.2d 146, 104 S. Ct. 2292 (1984). If police initiate interrogation after a defendant's assertion of his or her right to counsel at an arraignment or similar proceeding, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid. Michigan v. Jackson, 475 U.S. 625, 636, 89 L. Ed.2d 631, 106 S. Ct. 1404 (1986).

Coleman has alleged violations of his right to counsel under both the Fifth and Sixth Amendments, albeit he has collapsed these arguments in his brief. At the suppression hearing, the State argued that "[t]he real issue gone over by the Court on the October 28 questioning is whether or not Coleman's Sixth Amendment right to counsel was violated by law enforcement initiating contact with Coleman." In announcing its decision, the district court did not mention whether its decision was based on the Fifth or on the Sixth Amendment. In deference to the dissent's belief that we are usurping the fact-finding duties of the trial court, the trial judge's entire ruling is set forth below.

"Regarding the October 18 interview, I would actually like to thank both the lawyers. This is a very interesting issue, and when you do criminal for as long as I've been doing it, you don't seem to see many new or interesting issues. They all seem the same. This is extremely interesting. I want to—I agree with Mr. Kaufman that this does come down to the credibility of the witnesses. I want to make a couple of comments on this. Mr. Coleman testified, and I was kind of shocked when I saw his personal history sheet that he has a tenth grade education. Certainly that is not reflected in what I saw on the witness stand. Mr. Coleman is obviously bright and intelligent. He's well spoken. The answers that he gave here were thoughtful, and I actually thought that he probably had some college. He's very mature, and I was quite impressed with his level of intelligence that I observed.

"I also would point out that Mr. Coleman is somewhat sophisticated within the criminal history, within the criminal system. His personal history sheet and his own testimony indicate that he has had prior law enforcement contacts. And in fact, it appears he has actually been in prison after the conviction on an escape charge, it appears, as an adult, and a violation of probation to Community Corrections. He's also been to Labette boot camp. He has some juvenile—he has a juvenile record as well. So I would say that his contact with lawyers, defense lawyers, et cetera, has been somewhat significant for someone of his age, and I would point out that in my mind I believe that that indicates to me that he is not naive of the criminal justice system.

"It is very clear that this whole, this second—I'm calling this the second interview, this interview on October 18 was essentially initiated through the contacts that Tiffany Mayson and perhaps this aunt had with Ms. Parker. Ms. Parker indicated that she had numerous messages left on her answering machine. I'm not surprised that she is somewhat unfamiliar or we did catch her off guard,

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