State v. Kirkpatrick

• Decision Date: 23 October 2012
• Docket Number: No. 20110312.,20110312.
• Citation: 2012 ND 229,822 N.W.2d 851
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Gene Carl KIRKPATRICK, Defendant and Appellant.
• Court: North Dakota Supreme Court

822 N.W.2d 851

2012 ND 229

STATE of North Dakota, Plaintiff and Appellee

v.Gene Carl KIRKPATRICK, Defendant and Appellant.

No. 20110312.

Supreme Court of North Dakota.

Oct. 23, 2012.

Birch P. Burdick, State's Attorney, Fargo, ND, for plaintiff and appellee.

Daniel E. Gast, Fargo, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Gene Kirkpatrick appeals from a criminal judgment entered after a jury found him guilty of conspiracy to commit murder and conspiracy to commit burglary. We conclude his statement to law enforcement was voluntary and properly used against him, the evidence was sufficient to sustain his conspiracy to commit burglary conviction, and the trial court did not err in issuing jury instructions. We affirm.

I

[¶ 2] On October 26, 2009, Kirkpatrick's son-in-law, Phillip Guttuso, was found bludgeoned to death in his Fargo home. Guttuso's car and various household items were stolen. Michael Nakvinda, a man Kirkpatrick had employed on miscellaneous projects, was convicted in December 2010 of murdering Guttuso. State v. Nakvinda, 2011 ND 217, 807 N.W.2d 204.

[¶ 3] After Guttuso's death, law enforcement met with Kirkpatrick in his home state of Oklahoma on October 31, 2009, and obtained a statement from him. Based on Kirkpatrick's incriminating interview statements, Kirkpatrick was charged with conspiracy to commit murder and conspiracy to commit burglary.

[¶ 4] A jury trial was held in July 2011. At trial, the State introduced Kirkpatrick's interview with law enforcement as evidence that after Guttuso's wife, who was Kirkpatrick's daughter, died in March 2009, Kirkpatrick wanted the Guttusos' child raised in Oklahoma, not in Fargo with Guttuso. Because Guttuso would not give up custody of the child, the State argued Kirkpatrick and Nakvinda conspired to murder Guttuso. Kirkpatrick's interview with law enforcement provided evidence Kirkpatrick and Nakvinda discussed killing Guttuso on multiple occasions; Kirkpatrick provided $3,000 to Nakvinda for expenses a few days prior to Guttuso's death; and Kirkpatrick provided Nakvinda with Guttuso's schedule and a videotape of Guttuso's home “for [Nakvinda] to ... be familiar with the place.”

[¶ 5] In his law enforcement interview, Kirkpatrick stated that while he did want the child to come to Oklahoma, his statements to Nakvinda about killing Guttuso were not to be taken seriously because, “I said [to Nakvinda] we're just talking about this stuff.... I don't know that I want to do this.” Kirkpatrick asserted Nakvinda misinterpreted his intentions and unilaterally decided to kill Guttuso.

[¶ 6] At the conclusion of the State's case, the State requested the trial court modify the draft jury instructions to clarify the conspiracy to commit murder charge was for intentional murder. Kirkpatrick objected, asserting the change would unfairly prejudice him because he was charged with conspiracy to commit felony murder,¹ not conspiracy to commit intentional murder. The trial court granted the State's request. Additionally, Kirkpatrick sought a jury instruction allowing consideration of his asserted extreme emotional disturbance at the time of the alleged conspiracy to commit murder due to the loss of his daughter and perceived loss of his granddaughter. The trial court denied the request, and the jury found Kirkpatrick guilty on both charges.

II

[¶ 7] On appeal, Kirkpatrick argues his statement to law enforcement after Guttuso's death was involuntary and should not have been used as evidence against him. Before trial, Kirkpatrick sought to suppress his statement. After a hearing and making detailed findings of fact, the court denied his motion.

[¶ 8] In reviewing a district court's denial of a motion to suppress evidence, this Court “defer[s] to the district court's findings of fact and resolve[s] conflicts in testimony in favor of affirmance.” State v. Smith, 2005 ND 21, ¶ 11, 691 N.W.2d 203. This Court will affirm a district court's decision if “there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence.” City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994) (citations omitted).

[¶ 9] “A confession is voluntary if it is a product of the defendant's free choice rather than a product of coercion.” State v. Goebel, 2007 ND 4, ¶ 16, 725 N.W.2d 578 (citation omitted). “Voluntariness is determined by examining the totality of the circumstances surrounding the confession.” State v. Pickar, 453 N.W.2d 783, 785 (N.D.1990) (citations omitted). The voluntariness inquiry focuses on: “(1) the characteristics and conditions of the accused at the time of the confession, ... and (2) the details of the setting in which the confession was obtained....” Goebel, at ¶ 16 (citations omitted).

[¶ 10] In denying Kirkpatrick's motion, the trial court found Kirkpatrick was educated, in good health, and did not indicate he was too tired or too hungry to continue the interview. Kirkpatrick did not ask for a break, but he was given a break and water during the interview, and although he was grieving, he was not under “any great or very emotional distress” due to his daughter's death. The trial court found nothing in Kirkpatrick's age, sex, race, education level, physical or mental condition suggested the statement was involuntary.

[¶ 11] In addressing the second voluntariness prong, the trial court found the interview was informally conducted at either the Jones Police Department or Jones City Hall near Kirkpatrick's home, Kirkpatrick voluntarily spoke with law enforcement, and he was told he could leave several times. The court listened to the recording of the 2 hour and 47 minute interview and found the officers were cordial, polite, and did not raise their voices. Near the end of the interview, the officers asked Kirkpatrick if he felt “entrapped,” and Kirkpatrick said, “[y]ou all have totally done your job ... [in] a very kind and gracious way.”

[¶ 12] Kirkpatrick asserts the interview changed from “voluntary to [involuntary] prior to ... making any statements that could be considered incriminating.” He contends the police lied about Nakvinda incriminating Kirkpatrick, used interrogation techniques such as displaying empathy for losing his daughter and custody of his granddaughter, and appealed to Kirkpatrick's conscience. These are relevant factors; however, they are only individual factors in the larger totality of the circumstances analysis. See Pickar, 453 N.W.2d at 785. The State had the burden of proving the confession was voluntary, but Kirkpatrick did not identify in the suppression hearing or on appeal where or how the confession became involuntary.

[¶ 13] Ultimately, “[t]he voluntariness of a confession depends upon questions of fact to be resolved by the district court.” State v. Crabtree, 2008 ND 174, ¶ 13, 756 N.W.2d 189 (citation omitted). In this case, the record supports the trial court's conclusion the confession was voluntary. The court made detailed findings of fact, weighed the evidence, and found the confession to be voluntary. “Because the district court is in a superior position to judge credibility and weight, we give great deference to a district court's determination of voluntariness.” Id. Here, “there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence.” Thompson, 520 N.W.2d at 581. It was not erroneous to admit the confession.

III

[¶ 14] Kirkpatrick argues the trial evidence was insufficient to sustain his conspiracy to commit burglary conviction. He argues there is no evidence of an agreement to burglarize or evidence Nakvinda entered Guttuso's home without license or permission. A person is guilty of burglary under N.D.C.C. § 12.1–22–02(1) if:

[H]e willfully enters or surreptitiously remains in a building or occupied structure, or a separately secured or occupied portion thereof, when at the time the premises are not open to the public and the actor is not licensed, invited, or otherwiseprivileged to enter or remain as the case may be, with intent to commit a crime therein.

A person commits conspiracy under N.D.C.C. § 12.1–06–04(1) if:

[H]e agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses, and any one or more of such persons does an overt act to effect an objective of the conspiracy. The agreement need not be explicit but may be implicit in the fact of collaboration or existence of other circumstances.

[¶ 15] The issue in a sufficiency of the evidence appeal is whether evidence exists allowing the jury to draw an inference reasonably tending to prove guilt.

To successfully challenge the sufficiency of the evidence on appeal, a defendant must show there is no reasonable inference of guilt when viewing the evidence in the light most favorable to the verdict.... In deciding whether there is sufficient evidence, we do not resolve conflicts in the evidence nor do we weigh the credibility of the witnesses. We determine only whether there is competent evidence which could have allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.

State v. Delaney, 1999 ND 189, ¶ 4, 601 N.W.2d 573 (quotation omitted).

[¶ 16] Kirkpatrick's interview statement contains ample evidence to sustain his conspiracy to commit burglary conviction. At trial, a recording of Kirkpatrick's entire interview was played for the jury, and the transcript was provided. The interview contains the following exchanges:

Agent Cusick: [Nakvinda] left the meeting with the explicit understanding that he was going to North Dakota ... taking care of business ... picking up the Porsche, and coming back....

Kirkpatrick: Yeah.

....

Agent Cusick: What was the deal with the Porsche?

Kirkpatrick: [I]t was his idea. [Nakvinda] says did he have anything of...