State v. Gilliland, 102,265.

• Decision Date: 11 May 2012
• Docket Number: No. 102,265.,102,265.
• Citation: 294 Kan. 519,276 P.3d 165
• Parties: STATE of Kansas, Appellee, v. Vernon GILLILAND, Appellant.
• Court: Kansas Supreme Court

294 Kan. 519

276 P.3d 165

STATE of Kansas, Appellee,

v.Vernon GILLILAND, Appellant.

No. 102,265.

Supreme Court of Kansas.

May 11, 2012.

Syllabus by the Court

1. In reviewing a trial court's ruling on a suppression issue, an appellate court reviews the factual underpinnings of a 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.

2. For an evidentiary issue to be preserved for appeal under K.S.A. 60–404, the trial court must be provided the specific objection so it may consider as fully as possible whether the evidence should be admitted and therefore reduce the chances of reversible error. Thus, a defendant may not object to the introduction of evidence on one ground at trial and then assert a different objection on appeal.

3. To determine whether an accused's confession is voluntary, a court looks at the totality of the circumstances. The prosecution bears the burden of proving that a confession is admissible by a preponderance of the evidence. Nonexclusive factors include: (1) the accused's mental condition; (2) the duration and manner of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language.

4. The nonexclusive factors relating to whether an accused's confession is voluntary are not to be weighed against one another, with those favorable to a free and voluntary confession offsetting those tending to the contrary. Instead, the situation surrounding the giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. Even after analyzing such dilution, if any, a single factor or a combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances an accused's will was overborne and the confession was not therefore a free and voluntary act.

5. The fact that an accused had been drinking or using drugs does not per se establish involuntariness of the accused's confession. All circumstances surrounding the giving of the statement must be examined to determine if the intoxication prevented the accused from voluntarily making a statement.

6. The right to privacy under the Fourth Amendment to the United States Constitution is measured by a two-part test: (1) The person must have a subjective expectation of privacy; and (2) that expectation must be one that society recognizes as reasonable. Generally, a jail or prison inmate's right of privacy fails both prongs of the test. First, an inmate's privacy interest is severely limited by the status of being a prisoner and by being in an area of confinement that shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. Second, society would insist that the prisoner's expectation of privacy always yields to what must be considered the paramount interest in institutional security.

7. K.S.A. 21–4001 and K.S.A. 21–4002 are not violated when a jail records an inmate's telephone conversations with someone other than the inmate's attorney if the inmate has been given notice that the call will be monitored. Both statutes have consent exceptions, and the inmate consents to the recording through the action of continuing with the call with the knowledge that the call may be monitored.

8. Relevance, in addition to being the focus of general considerations regarding the admission of evidence, is the key consideration when applying the rape shield statute, K.S.A. 21–3525.

9. K.S.A. 60–401(b) defines relevant evidence as evidence that is material and probative. In determining whether the evidence is material, the analysis focuses on whether the fact to be proved is a fact that has a legitimate and effective bearing on the decision of the case and is in dispute. Evidence is probative if it has any tendency to prove any material fact.

10. The relevance of evidence is not determined by whether the evidence is corroborated or not.

11. An appellate court must disregard all errors that have not prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment.

[294 Kan. 521]12. To determine if a judgment is consistent with substantial justice, an appellate court must determine whether any errors in a proceeding affected the outcome of a trial in light of the entire record.

13. The degree of certainty by which a court must be persuaded that an error did not affect the outcome of a trial will vary depending on whether the failure infringes upon a right guaranteed by the United States Constitution. If it does not, the trial court should apply K.S.A. 60–261 and determine if the party benefitting from the error establishes there is a reasonable probability that the error will not or did not affect the outcome of the trial in light of the entire record. If the failure does infringe upon a right guaranteed by the United States Constitution, the trial court should apply the constitutional harmless error analysis defined in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). Under Chapman, the error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, that is, if the benefitting party proves there is no reasonable possibility that the error affected the verdict.

14. If an error relates to the application of a rule of evidence or procedure and not to a complete denial of a defense, the harmless error standard of K.S.A. 60–261 and K.S.A. 60–2105 applies, rather than the constitutional harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967).

15. A trial court that undertakes the determination of whether a child victim's statement is tainted by techniques used in the interview does not abuse its discretion by conducting the determination as part of a hearing under K.S.A. 60–408 regarding whether a witness is qualified.

16. A trial court errs in giving an Allen-type jury instruction that states “[a]nother trial would be a burden on both sides.”

17. In a cumulative error analysis, an appellate court aggregates all errors and, even if those errors would individually be considered harmless, analyzes whether their cumulative effect is such that collectively they cannot be determined to be harmless. In other words, was the defendant's right to a fair trial violated because the combined errors affected the outcome of the trial?

18. A sentencing court departs from Jessica's Law, K.S.A. 21–4643, if it does not impose a life sentence. If a different sentence is imposed, the sentencing court must state the substantial and compelling reasons for departure and must depart to the applicable guidelines grid box. Once the sentence becomes a guidelines sentence, the court is free to depart as allowed by applicable statutes. However, departure findings must justify both steps. The requirements of neither the first step into the guidelines nor the second step away from the presumptive guidelines sentence can be ignored, and all departure procedures must be followed.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause, and Heather Cessna, of the same office, was on the brief for appellant.

Christina M. Trocheck, assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Steve Six, attorney general, were with her on the brief for appellee.

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

Vernon Ray Gilliland was convicted by a jury of one count of aggravated criminal sodomy with a child under 14 years of age. Because Gilliland was over the age of 18 at the time of the offense, his conviction was for an off-grid person felony. K.S.A. 21–3506(a)(1), (c). On direct appeal, Gilliland seeks reversal of his conviction by arguing the trial court erred in: (1) denying his motion to suppress his statements to the law enforcement officer at the scene; (2) denying his motion to suppress the recordings of jailhouse telephone conversations; (3) excluding evidence under K.S.A. 21–3525(b), commonly known as the Kansas rape shield statute, regarding the victim's previous sexual conduct; (4) denying his motion to hold a pretrial taint hearing to determine the reliability of the victim's testimony and statements to law enforcement officers; and (5) giving an Allen-type jury instruction. Gilliland also argues that cumulative errors deprived him of a fair trial. We reject these arguments and affirm his conviction.

Gilliland additionally raises several sentencing issues. Under Jessica's Law, K.S.A. 21–4643(a), the prescribed sentence for Gilliland's conviction was life imprisonment. Although the sentencing court denied Gilliland's motion for a departure sentence, the court did not impose a life sentence. Instead, the court imposed a sentence under the Kansas Sentencing Guidelines Act, K.S.A. 21–4701 et seq., for a specific term. Thus, the effect of the sentence was contrary to the explicit finding of the sentencing court. Because of the ambiguity created by a finding that contradicts the sentence, creating an illegal sentence, we vacate the sentence and remand for resentencing. As a result, no other sentencing issues are ripe.

Facts and Procedural Background

Since the end of 2002, Gilliland lived in Salina, Kansas, with his girlfriend Charlotte and her two children, D.N. and C.E. On the morning of ...