State v. Goering, 54013

• Decision Date: 20 January 1983
• Docket Number: No. 54013,54013
• Citation: 656 P.2d 790,8 Kan.App.2d 338
• Parties: STATE of Kansas, Appellant, v. Nancy GOERING, Appellee.
• Court: Kansas Court of Appeals

Page 790

656 P.2d 790

8 Kan.App.2d 338

STATE of Kansas, Appellant, v. Nancy GOERING, Appellee.

No. 54013.

Court of Appeals of Kansas.

Jan. 20, 1983.

Joseph L. McCarville, III, County Atty., and Robert T. Stephan, Atty. Gen., for appellant.

Richard J. Rome, Hutchinson, for appellee.

Before REES, P.J., MEYER, J., and JAMES J. NOONE, District Judge Assigned.

MEMORANDUM OPINION

REES, Presiding Judge:

The State appeals from a pretrial suppression order it claims is contrary to the evidence.

When the admission into evidence of a defendant's extra-judicial statement is challenged pursuant to a motion under K.S.A. 22-3215, the trial judge must conduct a hearing out of the presence of the jury to determine whether the statement is admissible as a hearsay exception (K.S.A. 60-460[f ]. While the circumstances surrounding the making of the statement may be submitted to the jury as bearing upon the weight or credibility of the statement, the threshold issue of admissibility is for resolution by the trial judge. The State has the burden of proving admissibility. The ultimate issue to be decided, upon the totality of circumstances, is whether the statement was freely, voluntarily and intelligently made. State v. Duncan, 221 Kan. 714, 720, 562 P.2d 84 (1977); State v. Kanive, 221 Kan. 34, 35, 558 P.2d 1075 (1976). See also State v. Baker, 4 Kan.App.2d 340, 342, 606 P.2d 120 (1980).

The Miranda warning is a required prophylactic for statements resulting from custodial interrogation. Standing alone, Miranda warnings given and rights subsequently waived do not automatically render statements made in response to custodial interrogation admissible. Rather, statements made during custodial interrogation are inadmissible unless the procedural safeguard of Miranda is timely applied.

In State v. Newfield, 229 Kan. 347, 623 P.2d 1349 (1981), the State's investigation focused on the defendant, defendant was given Miranda warnings, and defendant made statements in response to custodial interrogation. A question reviewed was whether the statements were erroneously held to have been voluntary statements and admitted into evidence. The opinion states the duration and manner of interrogation, the accused's ability upon request to communicate with the outside world, the accused's age, intellect and background, and the fairness of the officers in conducting the interrogation are factors bearing upon the voluntariness of statements. 229 Kan. at 357, 623 P.2d 1349. It was not held those are the sole and only factors. See also State v. Costa, 228 Kan. 308, 309, 312, 613 P.2d 1359 (1980).

In the case before us, defendant is charged with abandonment of a child (K.S.A. 21-3604). The investigating officer testified an "abandonment of infant" was referred to him for investigation. When he met with defendant, "first she advised that she didn't know anything about it ... and then I explained to her information that I had received. The fact that she was the mother and I pointed out several pieces of information.... She asked me what I wanted and I advised her to--I wanted her to stick to the truth and to admit this thing and then we could proceed from there." (Emphasis supplied.)

The State's investigation was focused on defendant when the interrogation commenced--the interrogating officer forthrightly told defendant he wanted her confession. No Miranda warning was given until after the sought inculpatory statement was obtained. Thereafter, only details were asked for and obtained.

The investigating officer and the defendant were the only witnesses at the suppression hearing. Their testimony fully covered the totality of the circumstances surrounding the interrogation. It was the decision of the trial judge that the defendant's statements made before and after the giving of the Miranda warnings were not freely and voluntarily made, that is, they were not the product of her free and independent will (State v. Creekmore, 208 Kan. 933, 934, 495 P.2d 96 [1972] and her purported waiver of her Miranda rights was not knowingly and intelligently made.

From our review of the record on appeal, we cannot conclude that, as a matter of law, the State sustained its burden of proof.

Affirmed.

Upon request under Rule 7.04 (230 Kan. ix) publication of this opinion is ordered.

MEYER, Judge, dissenting:

I dissent. I cannot agree with the majority in its affirmance of the trial court's suppression of appellee's statements.

The aforementioned statements should have been admitted, pursuant to K.S.A. 60-460(f), as a confession by the accused. An excellent synopsis of this exception to the hearsay rule, the procedural hurdles to the admission of a confession into evidence, and of appellate review over such evidentiary questions, was provided by Judge Abbott in State v. Baker, 4 Kan.App.2d 340, 342, 606 P.2d 120 (1980); I quote therefrom:

"To be admissible in evidence as an exception to the hearsay rule under K.S.A. 60-460(f), a confession or extra-judicial statement by an accused must have been freely and voluntarily made. The voluntary nature of a statement must be established by a preponderance of the evidence, and by statute (K.S.A. 22-3215 the burden is on the prosecution to prove the statement is voluntary and admissible. State v. Kanive, 221 Kan. 34, 35, 558 P.2d 1075 (1976). Furthermore, when there is a conflict in testimony given by the defendant and that produced by the State as to the voluntary character of a confession, it is to be determined like any other question of fact; and although a finding by the trial court is open to review, it has a much better opportunity to ascertain the truth than that afforded to this court and its conclusion, if supported by substantial competent evidence, cannot be disturbed. Holt v. State, 202 Kan. 759, 764-65, 451 P.2d 221 (1969)."

In the case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, (1966), the United States Supreme Court held that it was a violation of constitutional rights to allow one's conviction to be based, in whole or in part, on an involuntary confession, regardless of its truth or falsity and even though there may be ample proof apart from the confession to support the verdict. It was further held that no statements by the accused could be admitted into evidence unless it was shown that, before being interrogated, the accused had been informed fully of his right to remain silent, his right to the presence of an attorney, and the consequences of his waiver of any of these rights. See 384 U.S. at 444-45, 86 S.Ct. at 1612.

There are two qualifiers which have steadfastly been applied by courts, post-Miranda, to determine whether a statement by the accused, elicited without benefit of the prescribed warnings, is thus automatically rendered involuntary, as a transgression of his privilege against self-incrimination. The first is whether the statement was the product of interrogation or "its functional equivalent." See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Statements which are volunteered by the accused, without any police prompting, are exempt from the warning requirement of Miranda. This first qualifier was met in the instant case; the State concedes that Lt. Miller was interrogating appellee at the time she made her confession.

The second qualifier is not so simply satisfied. To invoke Miranda, the statement by the accused must be the product of "custodial interrogation." This term was defined in the Miranda opinion itself "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." 384 U.S. at 444, 86 S.Ct. at 1612.

"This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused." 384 U.S. at 444 n. 4, 86 S.Ct. at 1612 n. 4.

This definition of "custodial interrogation," the key which triggers Miranda, has been repeatedly adopted by scores of jurisdictions. The following quotation indicates that Kansas has joined this legion; it also illustrates the distinction between interrogation which is "custodial" and that which is "investigatory."

" 'A defendant's statements to a police officer are not automatically inadmissible for failure to give him the Miranda warning unless the statements are the product of custodial interrogation.' State v. Edwards, 224 Kan. 266, Syl. p 1, 579 P.2d 1209 (1978); State v. Bohanan, 220 Kan. 121, Syl. p 1, 551 P.2d 828 (1976). In Bohanan the Court contrasted a 'custodial interrogation' where the warning is required with an 'investigatory interrogation' where it is not. The latter variety was defined as 'the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way.' State v. Bohanan, 220 Kan. at 128, 551 P.2d 828. Custodial interrogation on the other hand, requires 'significant restraints on [a subject's] freedom of movement which are imposed by some law enforcement agency.' State v. Brunner, 211 Kan. 596, Syl. p 2, 507 P.2d 233 (1973)." State v. Greenberg, 4 Kan.App.2d 403, 404-405, 607 P.2d 530, rev. denied 228 Kan. 807 (1980).

See also State v. Taylor, 231 Kan. 171, 172-73, 642 P.2d 989 (1982); State v. Edwards, 224 Kan. 266, Syl. pp 1, 2, 579 P.2d 1209 (1978); and State v. Frizzell, 207 Kan. 393, Syl. pp 1, 2, 485 P.2d 160 (1971).

In State v. Carson, 216 Kan. 711, 533 P.2d 1342 (1975), the court detailed several factors useful in determining whether a person has been the subject of custodial interrogation.

"Circumstances bearing on whether a person questioned was subjected to 'custodial interrogation' requiring Miranda warnings can be classified under the following general headings: (1) The nature of the interrogator; (2) the nature of...