State v. Goseland

• Decision Date: 22 December 1994
• Docket Number: No. 70,302,70,302
• Citation: 256 Kan. 729,887 P.2d 1109
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Paul L. GOSELAND, Appellant.

Page 1109

887 P.2d 1109

256 Kan. 729

STATE of Kansas, Appellee, v. Paul L. GOSELAND, Appellant.

No. 70,302.

Supreme Court of Kansas.

Dec. 22, 1994.

Syllabus by the Court

1. When a motion to suppress evidence is denied, a defendant must make a timely objection at trial, at the introduction of the evidence, specifying the ground for objection in order to preserve the issue on appeal. Moreover, a defendant may not object to the introduction of evidence on one ground at trial and then assert a different objection on appeal.

2. The standard of review applied to jury instruction error requires an objection before the jury retires, stating distinctly the matter objected to and the grounds for the objection, unless the instruction or the failure to give the instruction is clearly erroneous. An instruction is clearly erroneous if the appellate court is firmly convinced that if the error had not occurred, there is a real possibility that the jury would have returned a different verdict.

3. In a criminal action, the record is examined and it is held that the district court did not commit error or abuse its discretion in (1) denying the motion to suppress evidence; (2) admitting the defendant's statement made to the booking officer; (3) giving PIK Crim.3d 52.13 and a modified version of PIK Crim.3d 52.09; and (4) refusing to request another Topeka Correctional Facility report.

Steven R. Zinn, Deputy Appellate Defender, argued the cause, and Max Rowinsky, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, were on the brief for appellant.

David Lowden, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee.

ALLEGRUCCI, Justice:

This is a direct appeal by Paul Goseland from his conviction by a jury of possession of cocaine, in violation of K.S.A. 65-4127a(a). It was his third conviction for possession of cocaine, and he was sentenced pursuant to K.S.A. 65-4127a(a) to imprisonment for life.

On August 9, 1992, while on routine patrol in the early morning hours, Officers Ruffner and Henninger saw a motorcycle being driven in excess of the speed limit. The officers also observed that the motorcycle had no taillights and the license tag had expired. With the emergency lights on their patrol car activated, the officers pursued the motorcycle. The motorcycle failed to stop and, while in close pursuit, Officer Henninger saw the driver of the motorcycle remove his left hand from the handlebars, dig for something in front of him, and then drop a small blue bag to his side. When Goseland, who was the motorcycle driver, stopped, he was arrested and read his Miranda rights. The blue bag was retrieved and found to contain white powder. A small amount of the powder tested with a field kit registered positive for cocaine.

At the jail, Goseland again was read his Miranda rights, and he said he would not answer questions. While in the booking area completing the paperwork, Officer Henninger remarked to Goseland, "[Y]ou need to find something else to do with your life." Goseland responded, "[N]o, I'll not stop selling dope, because then you all would not have anything to do." Goseland's motion to suppress the statement was denied after a hearing.

At trial, a KBI chemist testified that the blue bag contained two packets of cocaine which weighed a total of one-third gram. A detective testified that cocaine commonly is sold for personal use in approximately one-quarter gram quantities with a street value of $25 to $30. The jury found Goseland guilty of one count of possession of cocaine.

It was stipulated that Goseland had twice before been convicted of possession of cocaine. His prior convictions were in September 1991 and March 1992. He was sentenced to life imprisonment. The district court declined to request preparation of another Topeka Correctional Facility (TCF) report and advised counsel that "I am considering this a final judgment."

Goseland first contends the district court should have excluded his response to Officer Henninger's remark that he should find something else to do with his life.

"The standard of review of a district court's determination where an inquiry on the admissibility of a defendant's statement was conducted and the statement was admitted into evidence is narrow. This court will accept the district court's determination if it is supported by substantial competent evidence. [State v. Law, ] 214 Kan. 643, Syl. p 1 [, 522 P.2d 320 (1974) ]." State v. Dixon, 252 Kan. 39, 52, 843 P.2d 182 (1992).

In the present case, the district court conducted a hearing on Goseland's motion to suppress the statement he made in response to Officer Henninger's remark and concluded that the statement should be admitted into evidence. Thus, this court's task is to determine whether the ruling is supported by substantial competent evidence.

Goseland urges that the focus, in fact the sole inquiry, should be whether Officer Henninger's remark "constitute[s] an interrogation within the meaning of Miranda." He relies on Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The United States Supreme Court stated:

"We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." 446 U.S. at 300-02, 100 S.Ct. at 1689-90.

Innis was arrested on suspicion of using a sawed-off shotgun to rob a taxicab driver. He was advised of his Miranda rights, and he stated that he wanted to speak to a lawyer. He was transported to the police station in a patrol car by three officers. En route, two of the officers carried on a conversation about the importance of searching for the shotgun because it presented a danger for the many handicapped children who attended school nearby. Innis interrupted the conversation and stated that he would show them where the shotgun was located. He led them to a field and pointed out the shotgun under some rocks. 446 U.S. at 294-95, 100 S.Ct. at 1686. Innis, the Supreme Court concluded, was not interrogated within the meaning of Miranda because he was neither expressly questioned nor "subjected to the 'functional equivalent' of questioning." 446 U.S. at 302, 100 S.Ct. at 1690.

The heart of Goseland's argument is his assertion that Officer Henninger formulated his remark for the purpose of eliciting an incriminating response. Goseland does not offer proof in support of his assertion. He states that there is no other explanation for Officer Henninger's remark. This ignores Officer Henninger's testimony that he advises nearly all arrestees that they need to find something else to do with their lives and that he did not expect the type of response Goseland gave. It also fails to take into account that this was the third time within a matter of months that Goseland had been booked for possession of cocaine. Goseland also cites Officer Ruffner's follow-up as showing Officer Henninger's bad motive. He does not explain how one proves or tends to prove the other, and it is not obvious. Goseland has not called to the court's attention any evidence that the officers were acting in concert.

As he does on appeal, Goseland relied on Innis in his pretrial motion to suppress. Goseland necessarily argued that Officer Henninger's remark was more nearly an interrogation than was the Innis officers' conversation about the safety of handicapped children. The district court judge disagreed, commenting that Officer Henninger's remark would be substantially less likely to evoke an incriminating response than the conversation which took place in the police car with Innis. The district court concluded that Officer Henninger's remark was not likely to evoke an incriminating response and refused to suppress Goseland's statement.

The State cites State v. Newfield, 229 Kan. 347, 357, 623 P.2d 1349 (1981), as showing that this court, like the United States Supreme Court, has considered police remarks more borderline than Officer Henninger's and concluded that they did not constitute interrogation. Newfield, who had been questioned before about a murder, was telephoned by a KBI agent and asked to come to the local police station to answer more questions. At the station, Newfield was advised of his Miranda rights, refused to give his fingerprints, and answered some questions about the victim's car. 229 Kan. at 349-50, 623 P.2d 1349. Newfield stated that he wanted to talk to a lawyer before he talked to the agents any more, and the following events occurred:

"The defendant's request for an attorney occurred at 3:13 p.m. Following his request, Agent Humphrey responded that the defendant would have to tell his attorney the truth before his attorney could help him, and that if Newfield wanted to...