State v. Greenberg, 50945

• Decision Date: 29 February 1980
• Docket Number: No. 50945,50945
• Citation: 607 P.2d 530,4 Kan.App.2d 403
• Parties: STATE of Kansas, Appellee, v. Jeffrey L. GREENBERG, Appellant.
• Court: Kansas Court of Appeals

Page 530

607 P.2d 530

4 Kan.App.2d 403

STATE of Kansas, Appellee, v. Jeffrey L. GREENBERG, Appellant.

No. 50945.

Court of Appeals of Kansas.

Feb. 29, 1980.

Review Denied June 20, 1980.

Syllabus by the Court

1. 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.

2. Custodial interrogation requires significant restraints on a subject's freedom of movement which are imposed by some law enforcement agency.

3. Our hit-and-run statute does not create the kind of "custody" which invokes the absolute duty to give the Miranda warnings.

4. In determining whether a statutory self-reporting requirement offends the self-incrimination clause of the Fifth Amendment the first inquiry is whether the requirement is part of a criminal law enforcement scheme or whether its primary purpose is regulatory, with only an incidental potential for self-incrimination.

5. If a self-reporting requirement is part of a scheme which is primarily regulatory, it is appropriate to assess its validity by balancing the potential for self-incrimination against the state's interest in enforcing its regulation.

6. K.S.A.1979 Supp. 8-1604, requiring insurance information from a driver involved in an automobile accident "if available," is primarily a regulatory measure.

7. The potential for self-incrimination in the statute is outweighed by the state's interest in enforcing its compulsory insurance laws.

8. Penal sanctions imposed vindictively, as official retaliation for an accused's exercise of constitutional rights, cannot be sustained. Whether a defendant exercises his constitutional right to trial must have no bearing on the sentence imposed.

9. In a prosecution for operating a motor vehicle without the statutorily required liability insurance it is held : (a) the defendant's admission that he was uninsured was properly received in evidence; (b) the trial judge's pretrial comment that unless defendant could produce a valid insurance policy the trial would be a waste of time was improper, but did not result in an unfair trial; (c) a fine which is double that customarily imposed for the same offense, expressly assessed as a penalty for asserting the right to a trial, cannot be upheld.

Stephen W. Brown, Pratt, and John C. Peck, of Legal Aid Society, Inc., Lawrence, for appellant.

Harry E. Warren, Asst. Dist. Atty., Robert T. Stephan, Atty. Gen., Michael J. Malone, Dist. Atty., and Bernard Brown, legal intern, for appellee.

Before FOTH, C. J., and ABBOTT and REES, JJ.

FOTH, Chief Judge:

Jeffrey L. Greenberg was convicted in a trial to the court of operating an uninsured motor vehicle in violation of K.S.A.1979 Supp. 40-3104, and was fined $100. He appeals, contending primarily that the use at trial of his admission to the investigating officer that he was uninsured violated his rights under the Fifth Amendment. Secondary contentions go to the alleged prejudice of the trial judge and to the sentence imposed.

Defendant was involved in a two car accident on December 13, 1978. Both drivers were injured, and both remained at the scene until the arrival of Officer Barbara Sult of the Lawrence Police Department. She sent them independently to local hospitals for treatment, and pursued her accident investigation there. She described her interview with defendant in the following terms:

"At which time I was investigating the accident, I did ask Mr. Greenberg his name, address, and for his driver's license. He produced a New York driver's license. And I asked him whether he had the name of his insurance company and the policy number. At that time, he advised me that he did not have insurance."

It is this testimony on which defendant bases his Fifth Amendment claim, employing two theories.

I.

He first argues inadmissibility because no Miranda ¹ warning was given him before Officer Sult questioned him. This objection was raised at trial and summarily overruled.

Although the issue is not as clear cut as the trial court apparently regarded it, we think the proper result was reached. "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 at 833. 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).

The underlying purpose of Miranda is to protect a suspect from the coercive pressures generated by the simple fact of being in police custody. That custody usually takes the form of arrest, and Miranda itself dealt with the coercive atmosphere of the police station. The doctrine has been extended to other situations, but in those cases where it took place elsewhere "custody" has been manifested by a demonstrated intent and capacity of the interrogator to physically prevent the subject from avoiding the interrogation. E. g., Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968) (defendant in state prison); Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) (four police officers entered defendant's boarding house bedroom at 4:00 a. m.).

Here the defendant had not been arrested or otherwise taken into custody by Officer Sult; she had merely suggested that he needed medical attention, and he proceeded to the hospital with the assistance of friends. His situation was strongly analogous to that of the hospitalized defendant in Brunner, where "custody" was found lacking.

Recognizing this, defendant argues that he was in "constructive" custody by virtue of our "hit-and-run" statute, K.S.A. 8-1602, making it a misdemeanor for a motorist involved in an injury accident to leave the scene without complying with what is now K.S.A.1979 Supp. 8-1604. The latter statute (quoted in the next section) requires the motorist to give identification and, under some circumstances, other information including insurance data, to the other parties to the accident and to any investigating officer.

The hit-and-run statute does not, in our view, create the kind of "custody" which invokes the absolute duty to give the Miranda warnings. It is not the presence of the police officer which inhibits the subject's movement, but the possibility of criminal liability if he leaves the scene. Indeed, 8-1604 contemplates that no officer may ever be present at the scene. In that event, after giving information to the other parties, the motorist is to file a written report. While there is a certain element of coercion in the overall reporting scheme to be dealt with below there is no "custodial" interrogation but only "investigatory" interrogation at the scene or, as here, at the hospital afterward. The result is that defendant's admissions were not fatally tainted by the lack of Miranda warnings.

II.

Defendant's second Fifth Amendment theory is that his incriminating response to the officer's question was coerced by the terms of the reporting statute, K.S.A.1979 Supp. 8-1604(a ):

"(a ) The driver of any vehicle involved in an accident resulting in injury to or death of any person, or damage to any vehicle or other property which is driven or attended by any person, shall give his or her name, address and the registration number of the vehicle he or she is driving, and upon request and if available shall exhibit his or her license or permit to drive, the name of the company with which there is in effect a policy of motor vehicle liability insurance covering the vehicle involved in the accident and the policy number of such policy to any person injured in such accident or to the driver or occupant of or person attending any vehicle or other property damaged in such accident, and shall give such information and upon request exhibit such license or permit and, if available, the name of the insurer and policy number, to any police officer at the scene of the accident or who is investigating the accident . . . ." Emphasis added.

The statute thus requires a motorist involved in an accident to furnish to other parties involved, and to any investigating officer, three kinds of information. First, there is an unqualified duty to furnish the driver's name and address both to other parties and to an investigating officer. Second, the driver's permit to drive is to be exhibited to other parties "if available," and must be exhibited to an officer on demand. Third, insurance information is to be furnished "if available" either to parties or an officer.

A Fifth Amendment challenge to a hit-and-run statute requiring name and address was rejected in California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971). Although there was no majority opinion in that case, in two separate opinions a majority of the justices relied on a balancing of the public necessity for enforcement of its regulations against the hazards of self-incrimination inherent in any compulsory reporting system. The balance in that case was struck in favor of the serious need to control traffic on the highways, which was found to outweigh the minimal risk of self-incrimination.

Our examination of cases where a compulsory self-reporting scheme has been...