State v. Makthepharak

• Decision Date: 31 October 2003
• Docket Number: No. 88,523.,88,523.
• Citation: 276 Kan. 563,78 P.3d 412
• Parties: STATE OF KANSAS, Appellee, v. SASHADA MAKTHEPHARAK, Appellant.
• Court: Kansas Supreme Court

276 Kan. 563

78 P.3d 412

STATE OF KANSAS, Appellee, v. SASHADA MAKTHEPHARAK, Appellant.

No. 88,523.

Supreme Court of Kansas.

Opinion filed October 31, 2003.

Roger L. Falk, Law office of Roger L. Falk & Associates, P.A., of Wichita, argued the cause, and Christopher L. Hughes, of the same firm, was with him on the brief for appellant.

Debra S. Peterson, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.:

Defendant Sashada Makthepharak appeals his convictions for first-degree felony murder, aggravated burglary, and criminal possession of a firearm.

We must address five issues: (1) Should Makthepharak's admissions to police have been suppressed? (2) Did the district court err in giving an "Allen-type" instruction before the jury began its deliberations? (3) Did sufficient evidence support Makthepharak's convictions for first-degree felony murder and aggravated burglary? (4) Should the jury have received requested instructions on lesser included offenses of felony murder? and (5) Should the jury have received a requested instruction on the meaning of "intentionally"?

Although Makthepharak listed a sixth issue on the propriety of the district court's instruction on aggravated battery, his brief fails to further address the issue and it is therefore deemed abandoned. See State v. Brown, 272 Kan. 843, 844, 35 P.3d 910 (2001).

Makthepharak was 16 years old at the time of the crimes at issue in this case. He had the equivalent of a seventh grade education and had taken classes in English as a second language. He also was taking mood stabilization medication for depression.

The victim, Chanh Chantivong, died from multiple gunshot wounds suffered when several men armed with 17 guns entered the Wichita home of Vouth Sim. Forensic evidence showed that Chantivong had been shot 16 times and stabbed once. Both .45 caliber and .22 caliber guns had been used to inflict Chantivong's wounds, and 26 spent shell casings from 6 weapons of three different sizes were found at the scene. Chantivong had fired a 9 millimeter semi-automatic handgun during the chaos.

Officers arrested Makthepharak late in the day after Chantivong's murder. Makthepharak was taken to the police department, where he was placed in an interview room, handcuffed to a table that was bolted to the floor, and made to wait approximately half an hour. Detectives then entered the room and read Makthepharak his Miranda rights. Makthepharak waived his rights and agreed to speak to the police.

Makthepharak's first interview began at about 10 p.m. and ended at about 3:30 a.m. During the course of the interview, Makthepharak's mother came to the police station and asked to see her son. She was told she could wait and speak to him when the interview had ended; she ultimately elected to leave the station before the interview was over and thus did not see Makthepharak.

Makthepharak told the detectives that he was a member of a gang called the "Dead Everlasting Gangsters." He and friends had gone to Sim's house, a gang house for the "Asian Pride" or the "East Side Crips," twice on the night of the murder.

During the first visit, there was a confrontation with Chantivong, and either Makthepharak or one of his associates displayed a gun. Also, according to Chantivong's brother, two shots were fired as Makthepharak and his friends departed. After Makthepharak and his friends had driven away, Chantivong sent his brother to retrieve Chantivong's gun from home. The brother returned with the 9 millimeter.

Although Makthepharak's statements about the second visit to Sim's house initially varied from one telling to the next, he ultimately told the detectives that he and his friends returned to the house to issue a "violation" for what they regarded as disrespect shown him by members of Asian Pride. The violation would take the form of a beating, such as one meted out to another individual earlier. That person had been bound and placed in a bathtub, then attacked.

On the second visit to Sim's house, according to Makthepharak, he hid behind a car while others kicked in the door. He then followed them inside and heard gunfire. Makthepharak said he then went into the room where the shots were fired and saw Chantivong was wounded. Makthepharak would not reveal the identities of the other gang members involved.

Although Makthepharak continued to deny being present in the room when Chantivong was shot, it was he who first told the police that Chantivong also had been stabbed, that Sim's mother also had been battered in the hallway of the house, and that Chantivong had fired his gun.

After his first interview, Makthepharak was housed at the juvenile detention facility, which was familiar to him from three previous stays. When asked on his admission to the facility if he was taking any medication, Makthepharak denied that he was. Makthepharak remained at the detention facility for the remainder of the night of his first interview, all of the following day and night, and part of the next day also. He was then interviewed again at the police station.

During his stay at the detention facility, Makthepharak had an opportunity to eat, rest, and be physically active. He also had the opportunity to use a telephone to call his mother, although he did not choose to do so. Makthepharak also would have been permitted to have visitors. He had none.

At Makthepharak's later suppression hearing, Detective Tim Relph testified that Makthepharak responded coherently and reasonably to questions during his interviews. Makthepharak also had indicated that he read and understood English, and the detective characterized Makthepharak's spoken English as "very good." When given his Miranda warnings, Makthepharak said he understood all of his rights. Makthepharak also was given a 30-minute break during his first interview, was offered something to drink, and was offered the chance to use the restroom. In addition, Makthepharak had experience with the criminal justice system. He stipulated at trial that he had been adjudicated a juvenile offender for an act that would have been a felony if it had been committed as an adult.

At trial, Sim's mother testified through a sworn interpreter that, on the night of Chantivong's murder, she heard someone kick in the door to the house. She initially tried to open an inside door to her son's room, where Chantivong was, but it was locked. She then hid because she thought there was an intruder in the house. After she heard shots, a man came into a hallway, pointed a gun at her head, and said, "Kill, kill."

When the jury was instructed before it began deliberations, the district court judge included PIK Crim. 3d 68.12 over a defense objection. The instruction said:

"This is an important case. If you should fail to reach a decision, the case is left open and undecided. Like all cases, it must be decided sometime. Another trial would be a heavy burden on both sides.

"There is no reason to believe that the case can be tried again any better or more exhaustively than it has been. There is no reason to believe that more evidence or clearer evidence would be produced on behalf of either side.

"Also, there is no reason to believe that the case would ever be submitted to 12 people more intelligent or more impartial or more reasonable than you. Any future jury must be selected in the same manner that you were.

"This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.

"This does mean that you should give respectful consideration to each other's views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion.

"You may be as leisurely in your deliberations as the occasion may require and take all the time you feel necessary."

Suppression of Admissions

Makthepharak argues first that his admissions were not voluntary.

"The ultimate issue of voluntariness of a confession is a legal question requiring independent appellate determination. See Arizona v. Fulminante, 499 U.S. 279, 287, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991); State v. Vandiver, 257 Kan. 53, 57-58, 891 P.2d 350 (1995). `"In reviewing a trial court decision regarding the suppression of evidence, we review the factual underpinnings of the decision by a substantial competent evidence standard of review and review the ultimate legal decision drawn from those facts de novo with independent judgment." [Citations omitted.]'" State v. Sanders, 272 Kan. 445, 452, 33 P.3d 596 (2001),cert. denied 536 U.S. 963 (2002) (quoting State v. Baston, 261 Kan. 100, 104-05, 928 P.2d 79 [1996]).

In addition, with regard to waiver, we have said that a criminal defendant's waiver of Miranda rights must be knowing, voluntary, and intelligent under the totality of the circumstances. See State v. Matson, 260 Kan. 366, Syl. ¶ 4, 921 P.2d 790 (1996); State v. Morris, 255 Kan. 964, Syl. ¶ 1,880 P.2d 1244 (1994). "If there is substantial competent evidence to support the trial court's findings that the defendant voluntarily, knowingly, and intelligently waived his rights, such findings will not be disturbed on appellate review." State v. Esquivel-Hernandez, 266 Kan. 821, 826, 975 P.2d 254 (1999).

Makthepharak's status as a juvenile also commands us to examine certain factors on the way to determining voluntariness: (1) his age, (2) the length of the questioning, (3) his level of education, (4) his prior experience with law enforcement authorities, and (5) his mental state. See State v. Young, 220 Kan. 541, 546-47, 552 P.2d 905 (1976). Makthepharak complains that the district judge...