State v. Miller, 48342

• Decision Date: 11 June 1977
• Docket Number: No. 48342,48342
• Parties: STATE of Kansas, Appellee, v. Gary M. MILLER, Appellant.
• Court: Kansas Supreme Court

Page 228

565 P.2d 228

222 Kan. 405

STATE of Kansas, Appellee, v. Gary M. MILLER, Appellant.

No. 48342.

Supreme Court of Kansas.

June 11, 1977.

Syllabus by the Court

1. There is a distinction between the investigatory stage of a case and the custodial interrogation which may ensue thereafter.

2. The resolution of questions pertaining to custodial interrogation are to be determined on a case-by-case approach depending upon the particular factual circumstances in each case.

3. The fact that an investigation has focussed on a suspect, standing alone, does not necessitate the giving of a Miranda warning, but it may be one of the determinative factors in deciding whether such a warning is needed.

4. A person who assumes and performs the duties of a public office under the color of authority and is recognized and accepted as the rightful holder of the office by all who deal with him is a de facto officer, even though there may have been defects in the manner of his appointment, or failure by him to conform to some condition precedent to assuming the office.

5. A challenge to the authority of a de facto officer must be made at the time he acts, and his actions are not subject to attack in a collateral proceeding.

6. Where a cause of death for which a defendant was found criminally responsible was unknown until after an autopsy was performed, the failure of a coroner to hold an inquest pursuant to K.S.A. 19-1030 (now 1976 Supp.), is not jurisdictional to the rendition of a final judgment in a murder case.

7. In charging a jury in a criminal case it is the duty of the trial judge to define the offense charged, stating to the jury the essential elements of the crime, either in the language of the statute or in appropriate and accurate words of his own.

Hugh H. Kreamer, of Breyfogle, Gardner, Martin, Davis & Kreamer, Olathe, argued the cause and was on the brief for appellant.

David W. Hughes, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Dennis W. Moore, Dist. Atty., and Karen K. Clegg, Asst. Dist. Atty., were on the brief for appellee.

KAUL, Justice.

Defendant-appellant, Gary M. Miller, appeals from a conviction by a jury of murder in the second degree. Defendant was charged with first degree murder of his wife, Mary, and convicted of the charge. A motion for a new trial was sustained following defendant's conviction. Defendant was again tried on a charge of murder in the first degree, but was convicted of second degree murder and this appeal followed.

Around 4:30 a. m. October 21, 1974, the fire department of Overland Park was notified of a fire at the Miller residence. Shortly thereafter units of the fire and police departments of Overland Park arrived and the fire was extinguished. The burned body of Mary Miller, defendant's wife, was found lying on its back in the northeast bedroom of the residence. In a conversation with police and fire officials at the scene, defendant stated that he and his wife and daughter were in the home during the evening of October 20, 1974. Defendant stated that because his daughter was not feeling well, he went into her bedroom to be with her where he fell asleep. At 4:00 a. m. defendant heard the radio playing in the northeast bedroom where his wife was sleeping. He stated that he again fell asleep in his daughter's bedroom and later was awakened by the smell of smoke. He heard his wife moving about the bedroom and yelled to her to leave the house. He took his daughter from the house and said that he tried to return for his wife, but the smoke was too thick. He took his daughter next door to the residence of Mr. and Mrs. Jerald Jones and Mrs. Jones reported the fire. Defendant and Mr. Jones returned to the Miller residence, but the fire was so far advanced they were unable to enter the house.

The body of Mrs. Miller was removed from the Miller residence and taken to a funeral home where an autopsy was performed by Dr. James Bridgens. Dr. Bridgens testified at trial that Mrs. Miller died as a result of strangulation and that her body was burned after her death. Dr. Bridgens further testified that the time of death was between 9:00 and 11:00 p. m., October 20, 1974. Dr. Bridgens' opinion as to time of death was based on the type and quantity of the contents of the deceased's stomach and on information that she had last eaten at 6:00 p. m.

The day after the fire, defendant signed a consent waiver authorizing the search of his residence. At this time defendant was informed by the police that his wife had died under suspicious circumstances and they wanted to investigate the fire. Defendant was also informed of his Miranda rights and signed a waiver thereof. When questioned about his activities on October 20-21, and the fire, defendant repeated his previous statements made at the scene of the fire. He also stated that the family had eaten a meal of steak and carrots at 6:00 p. m., the previous evening, and then watched television until 1:15 or 1:30 a. m., during which time his wife had a beer and he had a drink.

On October 22, 1974, defendant was again interviewed by police officers. During this conversation defendant asked if the autopsy report had been completed and if the cause of death had been determined. A police officer replied that the matter had not been completed and that the police still had quite a bit of testing to do, but that stab wounds and any type of shooting wounds had been ruled out. After the officer's reply defendant then asked if strangulation had been ruled out. The police had not mentioned to defendant, as yet, that the autopsy indicated strangulation.

Defendant's testimony at trial was generally consistent with the previous statements given to police officers except that he added that his wife had eaten stew containing carrots at 11:00 p. m. on October 20. Defendant also changed his statement that he had been at home the afternoon of October 20 and testified that he had spent the afternoon in the park with his daughter and his mistress. The woman identified as defendant's mistress testified at trial that she was with the defendant and his daughter in the park; that she was having an affair with defendant; and that he had promised to marry her after his divorce became final on October 23, 1974. The evidence at trial disclosed that defendant had never filed for a divorce.

The evidence at trial indicated that the fire originated in the bedroom where Mrs. Miller's body was found. However, the origin of the fire was never definitely determined.

In his first point on appeal defendant contends that Judge Swinehart, who presided at his second trial, committed reversible error in adopting the findings and decision of Judge Musser, who had presided at the first trial, with respect to certain motions which defendant had filed prior to the first trial and then renewed before the second trial. Defendant also contends he was not afforded an opportunity to reargue the motions when they were presented a second time.

The record does not support defendant in his position on this point. The journal entry, filed following the second trial, reflects that, prior to trial, Judge Swinehart was presented with seven motions by defendant. Pertaining to presentation of the motions, the journal entry reads:

". . . The Court, after listening to statements of counsel and being well and duly advised in the premises, makes the following findings: . . ."

Thereafter the court's findings as to each motion were listed in the journal entry. Some motions were sustained and others overruled. On the record presented we cannot go behind the language of the journal entry with respect to whether argument of counsel was permitted. In this connection in State v. Hess, 178 Kan. 452, 289 P.2d 759, we held:

"An appellate court will not determine the terms of a judgment on controverted and unsupported claims of the parties to the action and must assume the journal entry of judgment correctly reflects the judgment rendered and the facts therein recited notwithstanding a claim by one of the parties to the contrary.

"Upon appeal in a criminal action: (1) Error is never presumed but must be established. (2) If susceptible of a reasonable interpretation to the contrary the record of the proceedings of the trial court will not be interpreted to show error." (Syl. 1 and 2.)

See, also, City of Wichita v. Catino, 175 Kan. 657, 265 P.2d 849; and State v. Smith, 171 Kan. 722, 237 P.2d 388. In any event we take note that no written request for oral argument appears in the record. (Supreme Court Rule No. 133, 220 Kan. LX, formerly Rule No. 114.)

The two matters involved in the motions to which defendant directs our particular attention concern his motion to suppress a statement made by defendant to Detective Grove and his motion to suppress any evidence of the autopsy.

In his point two on appeal, defendant states his position with respect to defendant's statement in these words:

"The court erred in rulings made before and during trial and in particular with reference to a statement made by the appellant to Detective Grove on October 21, 1974, when said statement was not based on an informed consent."

The statement in question, concerning when defendant and his wife had their last meal, was made by defendant during the afternoon of October 21, at the police station where he had gone at the request of the police.

At the time the statement was made, the interrogating officers were aware of the pathologist's opinion that strangulation, and not fire, was the cause of death. We are informed by the state's brief that in a prior conversation with the police, defendant was told that his wife had died under suspicious circumstances and the police wanted to investigate the fire. Prior to making the admission defendant was advised of his rights. (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) During this conversation the police were apparently attempting...