State v. Donesay, 77558

• Citation: 959 P.2d 862,265 Kan. 60
• Decision Date: 29 May 1998
• Docket Number: No. 77558,77558
• Parties: STATE of Kansas, Appellee, v. Sakone Mel DONESAY, Appellant.
• Court: United States State Supreme Court of Kansas

Page 862

959 P.2d 862

265 Kan. 60

STATE of Kansas, Appellee, v. Sakone Mel DONESAY, Appellant.

No. 77558.

Supreme Court of Kansas.

May 29, 1998.

Syllabus by the Court

1. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, this court accepts that determination if it is supported by substantial competent evidence.

2. Where the accused is a juvenile 14 years of age or older, the determination of whether the accused's extrajudicial statement is voluntary is based upon the totality of the circumstances, and the court exercises the greatest care in assessing the validity of the confession.

3. When a suspect makes a statement which may be ambiguous as to whether the suspect is asserting a right to remain silent or to confer with counsel, the interrogator may but is not required to ask questions to clarify whether the suspect is asserting a right to remain silent or to confer with counsel.

4. A defendant may tender guilty pleas to some but not all counts of a complaint. The acceptance of the defendant's plea of guilty after the requirements of K.S.A. 22-3210 are met is within the sound discretion of the trial court.

5. Admission of evidence is entrusted to the sound discretion of the trial court. Discretion is abused only where no reasonable person would take the view adopted by the trial court. Absent a clear showing of abuse of discretion, evidentiary findings of the trial court will not be set aside on appeal.

6. K.S.A. 60-401(b) provides that "relevant evidence" is evidence having any tendency in reason to prove any material fact.

7. The admission or exclusion of evidence is also measured by the harmless error rule.

8. In determining if the erroneous admission of evidence is harmless, the court must consider if it is inconsistent with substantial justice, i.e., affects the substantial rights of a defendant and, if not, whether this court can declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.

9. The admission of evidence in a murder trial regarding the victim's family, the victim's relationship with a spouse or family member and friends, the victim's character, and the details of the victim's last days before death which has been intentionally and not incidentally elicited by the prosecuting attorney during the trial, is patently improper and reversible error.

Michael J. Helvey, Assistant Appellate Defender, argued the cause, and Steven R. Zinn, Deputy Appellate Defender, was with him on the brief for appellant.

Debra S. Peterson, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with her on the brief for appellee.

ALLEGRUCCI, Justice:

Sakone Mel Donesay appeals his jury convictions of premeditated murder, aggravated robbery, criminal damage to property, two counts of felony theft, and criminal possession of a firearm. Defendant, who was 14 at the time the offenses were committed, was tried as an adult. A controlling sentence of the hard 40 plus 100 months was imposed.

Donesay had been adjudicated as a juvenile offender in 1994 and had been held at the Youth Center at Atchison. Upon his conditional release, he returned to Dodge City to reside with his parents. On November 27, 1995, he and his father met with a community corrections officer in Dodge City and agreed to conditions of intensive supervision for Donesay. Under the agreement, Donesay was subject to a curfew and was not allowed to leave Ford County without a travel permit, there were to be no firearms in the residence and certainly not in defendant's possession, and violations of the law and consequent contact with law enforcement were grounds for revoking the conditional release.

On January 2, 1996, the community corrections officer received a telephone call from Donesay's father. He stated that Donesay had left home on December 31, 1995, had not returned, and was believed to be in Wichita.

The events leading to the charges against Donesay occurred during the first week of January 1996. Donesay and several companions went to Dodge City in a stolen car and stole another one there. Driving a Honda Accord stolen in Dodge City, Donesay returned to his parents' house, got a box which he put in the glove compartment, and drove back to Wichita. Donesay's father kept under his bed a .25 caliber handgun and magazine, which he had seen for the last time on January 1.

After Donesay damaged the front end of the Honda in a collision with a car driven by friends, they abandoned it in rural Sedgwick County. Before leaving the car, Donesay shot it with his father's gun.

Donesay and a friend then stole another Honda in Wichita. Even though they broke into the steering column to start the car without keys, when they found a set of keys in the glove compartment, they put them in the ignition so that the car would not look stolen. When they noticed that one of the headlights was out, they decided they needed to get another car to avoid being stopped by police.

In the early morning hours of January 8, they picked up three female friends and made another stop at the residence of an acquaintance.

Before locating another car to steal, Donesay and his companions saw a sheriff's patrol car traveling in the opposite direction. Officer Kevin Easter advised the dispatcher that he had observed a vehicle run a stop sign and that the driver appeared to be trying to lose him. Officer Easter made a U-turn and turned on his overhead lights. He advised the dispatcher that he was in pursuit and provided a description of the car as well as locations. In trying to get away from the officer, Donesay missed a turn, lost control, went through a fence, and drove into a residential yard.

When the car had come to a stop, Donesay reached under the seat to get the gun, jumped out of the car, and ran. Donesay later told police that he did not think Officer Easter saw that he had a gun and that Easter did not shoot at him or tell him to drop his gun. The officer chased Donesay and several times told him to stop. As Donesay was trying to vault over a fence, Easter grabbed his leg. Easter pulled Donesay off the fence and they both went down. Within a very short time, Easter put his fingers in Donesay's mouth. With Donesay on his right side and Easter on top of him, Donesay put the gun over his shoulder and fired. Officer Bowker, who had arrived by then, heard two quick shots, a pause, and two more quick shots. Donesay testified that Easter "just faded away from me a little bit and I had to push him off a little bit." The defendant got up, saw Easter's gun, and grabbed it. As Donesay was getting up, he saw someone with a flashlight come around the corner and heard a gunshot. When Donesay tried to run, he fell. After a police officer caught and handcuffed him, they found that Donesay had a gunshot wound in his leg, which he had accidentally inflicted himself.

Officer Easter was shot at close range in the right forearm, right shoulder, back of the head, and the back of his neck. The bullet that entered the back of his neck traveled along his spinal column and through his right lung and liver, causing his death. Other injuries on his body included two small tears inside his lips, scrapes on his face, and a bite mark on his left leg.

The first issue we consider is whether it was error for the district court to admit Donesay's statements into evidence. While Donesay was in the hospital recovering from the gunshot wound in his leg, he gave several statements to police. Defense counsel filed a motion to suppress the statements, a hearing was conducted, and the district court denied the motion. Defense counsel objected when the State introduced the statements at trial.

There is no dispute that Donesay was handcuffed to the bed and in custody when he gave statements to the police in his hospital room. Detective Bruce Morton testified that at approximately 6 a.m. on January 8, 1996, he entered Donesay's hospital room. Three law enforcement officers were there guarding the room. Morton was accompanied by two other officers. Donesay was asleep, and there were IV needles in his arms. Officer Morton asked a nurse if it would be all right to interview Donesay, and she stated that the medicine he had been given would not impair his ability to understand what was going on. Donesay was awakened, and the police officers were introduced. Officer Morton started a portable cassette recorder, Donesay was advised of his Miranda rights, and he initialed the Miranda form.

After giving the Miranda warnings, Officer Morton asked, "[D]o you want to give us your side of the story?" Donesay said, "No, not right now." Then Donesay added that he did want to talk to the police, "but later." Morton continued, "Okay, you don't want to talk to us now though?" Donesay answered,"No, I'm too tired." Still, Morton persisted:

"Okay, you can't talk a little bit to us? Just to help, help kinda things out, let us know what happened? I mean, we're not gonna be here long. We're not gonna keep you up all day, we just kinda want to know what's going on so we can figure everything out. Uh, if you can stick with us for awhile, that would help us out a lot. Would you, would you be willing to do that? Huh?"

Donesay answered, "I don't know." Morton, "Well, would you be willing to talk to me? You know, the sooner we talk about this, you know, the easier it's gonna be for everybody." Donesay, "Yeah, I guess I'll talk about it."

At Morton's urging to "tell me, basically what happened tonight," Donesay began talking. He said that he was driving around with friends when a police officer started following him. He was scared because the car was stolen. He sped up and tried to lose the officer. He went...