State v. Ninci, 74725

• Citation: 936 P.2d 1364,262 Kan. 21
• Decision Date: 18 April 1997
• Docket Number: No. 74725,74725
• Parties: STATE of Kansas, Appellee, v. Michael D. NINCI, Appellant.
• Court: United States State Supreme Court of Kansas

Page 1364

936 P.2d 1364

262 Kan. 21

STATE of Kansas, Appellee, v. Michael D. NINCI, Appellant.

No. 74725.

Supreme Court of Kansas.

April 18, 1997.

Syllabus by the Court

1. A trial court's denial of a motion to suppress evidence will be upheld on review if it is supported by substantial competent evidence.

2. Section 15 of the Kansas Constitution Bill of Rights provides protection identical to that provided under the Fourth Amendment to the United States Constitution. The wording and scope of the two constitutional clauses are identical for all practical purposes. If conduct is prohibited by one, it is prohibited by the other.

3. Under the Fourth Amendment, evidence obtained pursuant to defendant's consent is admissible only if defendant's grant of consent is voluntary under the totality of the circumstances. Therefore, in a case in which evidence is obtained pursuant to consent granted subsequent to illegal police actions, the exploitation issue is resolved by determining whether or not defendant's grant of consent was voluntary under the totality of the circumstances. The police officers' reason or basis for asking for defendant's consent is irrelevant to the exploitation issue unless the manner in which the police officers request consent renders defendant's consent involuntary. When defendant's grant of consent is voluntary, then there is no exploitation because the findings of voluntary consent and exploitation are mutually exclusive.

4. To be voluntary, the defendant's consent must be unequivocal and specific and freely and intelligently given. The consent must be given without duress or coercion, express or implied. The State bears the burden of proving voluntariness. The question of voluntariness should be decided in light of the totality of the circumstances, considering whether the individual was threatened or coerced and whether the individual was informed of his or her rights.

5. The admissibility of statements made by a defendant before Miranda warnings are given depends on whether the statements are the result of a custodial interrogation or an investigatory interrogation.

6. In order for the waiver of Miranda rights to be knowing and voluntary, two requirements must be met. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

7. When a trial court conducts a full hearing on admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at trial, an appellate court accepts that determination if it is supported by substantial competent evidence.

8. A defendant cannot raise points on appeal which were not presented to the trial court.

9. Invocation of the Fifth Amendment right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.

10. When a jury is instructed that intentional acts by a defendant must be proven in order to convict a defendant of aiding and abetting a crime, a jury understands that proof of mere association or presence is insufficient to convict the defendant of aiding and abetting. It is therefore not error to refuse to give a defendant's requested instruction on "mere association."

11. A prosecutor commits error when the prosecutor uses language that was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.

12. The law is well settled in this state that in a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome.

13. A trial court is given considerable latitude in determining the admissibility of a statement under K.S.A. 60-460. The standard of appellate review concerning the admission of hearsay evidence is abuse of trial court discretion.

14. If an utterance previously made out of court is offered in evidence merely for the purpose of establishing what was then said, and not for the purpose of establishing the truth of the statement, the testimony is not hearsay. If relevant, it is admissible through the person who heard it.

15. The defendant has the burden of furnishing a record which affirmatively shows prejudicial error occurred in the trial, and absent such a record, the reviewing court assumes the trial court's action was proper.

16. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.

17. The constitutional prohibition against double jeopardy is directed to the identity of the offense and the act. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied when determining whether there are two offenses or only a single offense is whether each statutory provision requires proof of an element that the other does not. Where one statute requires proof of an element that the other does not, the crimes are not the same, even though proof of the separate crimes may substantially overlap.

Elizabeth Seale Cateforis, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, and Michael D. Ninci, pro se, were with her on the briefs for appellant.

Steven J. Obermeier, Assistant District Attorney, argued the cause, and Paul J. Morrison, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief for appellee.

ABBOTT, Justice:

This is a direct appeal by the defendant, Michael D. Ninci, from his convictions of felony murder (K.S.A.1992 Supp. 21-3401), robbery (K.S.A. 21-3426 [Ensley 1988] ), and aggravated burglary (K.S.A.1992 Supp. 21-3716). Ninci appeals, raising some 13 issues.

Michael Owen was killed at his home in Leawood, Kansas, in the late evening or early morning of September 10 or 11, 1992. Owen's neighbors discovered his body outside his townhouse the morning of September 11, 1992.

A neighbor of Owen's, Lauren Auch, was out walking her dog on September 10, 1992, at approximately 10:30 p.m., and she noticed an unfamiliar car parked in Owen's driveway. Auch testified at trial that photos of Ninci's Saab looked very similar to the car she had seen in the driveway on the night of the murder, but she could not say for certain that it was the same car.

A pathologist discovered two wounds to Owen's head, indicating that he had been hit in the head with a heavy object. She also observed a deep cutting wound across Owen's neck which sliced his jugular vein. The pathologist concluded that Owen had bled to death after his throat was cut.

A week into the investigation, Harold Glen Ford had become the prime suspect in the case. Elizabeth Berkley was identified as Ford's girlfriend and was interviewed several times. During the third interview, Berkley gave the police Ninci's name. Berkley told the police that on September 10, 1992, Ninci and Ford had gone to a house in Leawood to visit with someone.

During a 3-hour videotaped interview at the Leawood police station, Ninci admitted that he was present at Owen's home the night of the murder and was with Ford. Ninci indicated that he had only known Ford for a few months and did not know him well. Ninci knew that Ford sold and used cocaine. During their acquaintance, Ford had told Ninci that he knew a rich guy named Mike and that Ford wanted to kill him, but Ninci "blew off" this talk. On the afternoon of September 10, 1992, Ford and Ninci visited Owen in his Leawood home. Ninci then realized that Owen was "Mike," the person Ford wanted to kill. The two men stayed at Owen's residence for approximately 40 to 45 minutes, during which time Owen showed them around his home. Owen was a collector and had collections of art, wine, glasses, baseballs, and jewelry. Ninci told the police that Owen invited them to come back later that evening after Owen returned from working out.

Ford and Ninci returned to Owen's home later that evening. Ninci parked his Saab in Owen's driveway. According to Ninci, the three just socialized for awhile. Ninci stated that he used the bathroom and that after he returned from the bathroom, he looked around and saw Owen "laid out." Ninci stated that he saw Ford cut Owen's throat. Ninci stated that Ford was telling him what to do and was moving around the house taking things. Ninci admitted that he also took some items from Owen's home. According to Ninci, Ford directed Ninci to drive him to the airport. Ninci did so, and Ford flew to Las Vegas.

The police recovered some of Owen's property in Ninci's home, in Ninci's parents' home, and from Timothy Haas. At trial, Haas explained how he came to be in possession of Owen's property. Haas testified that at 4 a.m., on September 11, 1992, he was awakened by insistent, loud knocking at his door. The knocking lasted 10 to 15 seconds. Later, the phone rang. Haas let his answering machine pick up, but when he heard Ninci's voice, Haas answered. Ninci told Haas he had something real important to come over and talk about. After a few minutes, Ford and Ninci arrived at Haas' apartment. When the two...