State v. Shumway

• Citation: 30 Kan. App.2d 836,50 P.3d 89
• Decision Date: 19 July 2002
• Docket Number: No. 86,290.,86,290.
• Parties: STATE OF KANSAS, Appellee, v. RUSSELL LEE SHUMWAY, Appellant.
• Court: Court of Appeals of Kansas

30 Kan. App.2d 836

50 P.3d 89

STATE OF KANSAS, Appellee, v. RUSSELL LEE SHUMWAY, Appellant.

No. 86,290.

Court of Appeals of Kansas.

Opinion filed July 19, 2002.

R. Kip Elliot and Julia Spainhour, of Northeast Kansas Conflict Office, of Topeka, for the appellant.

Robert D. Hecht, district attorney, Deborah L. Hughes, assistant district attorney, and Carla J. Stovall, attorney general, for the appellee.

Before LEWIS, P.J., BRAZIL, S.J., and GLENN D. SCHIFFNER, District Judge, assigned.

BRAZIL, J.:

Russell Lee Shumway appeals his conviction of murder in the second degree, arguing that the district court violated his due process rights by admitting unreliable testimony against him, that the district court erred in instructing the jury on murder in the second degree as a lesser included offense of felony murder, and that the district court imposed a disproportionate sentence in violation of his Eighth Amendment rights. We affirm.

On the morning of October 8, 1999, Mitch Davis was discovered in his backyard by a neighbor. He had suffered multiple blows to the head from a blunt instrument, causing hemorrhaging and, ultimately, death. An autopsy also revealed large amounts of methamphetamine in the victim's bloodstream; however, the investigating pathologist determined the use of drugs was not a contributing factor in the death.

Shortly thereafter, the Scientific Investigation Unit of the Topeka Police Department processed the crime scene and confiscated a blood-stained, 2x4 board, which had been found by a neighbor in the alley behind the victim's property. The blood on the board was matched to blood from the victim. Although the board was tested for fingerprints, the results were inconclusive.

Pursuing some tips received from the Crime Stoppers network, the police attempted to track down some potential witnesses, John and Mary Finney, who, following the murder, were either living in a motel or on the street. After the investigators persistently called John Finney's mother in an attempt to locate him, Finney contacted the police to arrange an interview. On October 21, 1999, Finney appeared at the police station.

During an interview, Detective Eaton produced some photographs of the crime scene, a few Crime Stoppers reports, and a couple of fabricated reports implicating Finney and the defendant in the murder. Despite the pressure the police tactics were designed to bring to bear, Finney repeatedly denied any involvement in the crime and eventually requested permission to leave.

However, when the detective asked Finney to stay a bit longer, Finney consented. The detective then sought the assistance of Captain Mills, who also spoke with Finney, promising to help him out and indicating that he did not believe that Finney had committed the murder. Still, Finney refused to talk, desiring to talk with his wife, Mary. Consequently, when Finney promised to return the following day, the police released him.

Finney did not return as promised the following day. Rather, the police searched for nearly 2 weeks before locating him and Mary at a hotel. With some prompting by the police, the Finneys reluctantly agreed to return to the police station with the officers to talk about the murder investigation.

John Finney told the police, in that interview, that the defendant had committed the murder. According to Finney, Shumway and he had been drinking and decided to visit a friend in North Topeka or to get money from Finney's mother for more alcohol. Because neither Finney nor Shumway owned a vehicle other than a mobile home, they started out on foot.

As they walked through the alley behind the victim's house, Finney noticed a couple of bicycles in the victim's yard and suggested that they take the bicycles. Shumway and Finney entered the yard, but they soon realized that the bicycles were chained.

According to Finney, he then suggested leaving the yard and returned to the alley. Finney realized that Shumway had not followed him, so Finney peered over the privacy fence into the backyard. He stated he witnessed Shumway hitting the victim with a 2to 3-foot long 2x4.

Finney asked him to stop. Shumway allegedly requested Finney to take the 2x4 while he searched the victim's pockets. Finney refused, announced that he was leaving, and ran home. He explained to his wife and to Shumway's wife what had occurred.

When Shumway returned, he reported that he had just beaten someone, had taken some credit cards and money from the victim, and had hidden the stolen items under a bush. Shumway had blood stains on his sandals, shorts, and shirt. While he showered, his wife supposedly disposed of the sandals, shirt, and shorts.

Based upon these statements and the circumstantial physical evidence gathered from the crime scene, Shumway was charged with first-degree murder, aggravated robbery, and attempted misdemeanor theft.

While Shumway was incarcerated in the county jail, pending his trial, he allegedly sought the advice of Edward Radford, commonly known to assist inmates in postconviction motions for relief. According to Radford, Shumway eventually admitted that he had killed the victim. He also purportedly detailed his participation in the crime to two other inmates of the county jail, John Powers and Russell Lutz.

After several days of trial, the prosecution requested an instruction on second-degree murder as a lesser included offense of first-degree felony murder, which the court granted. Subsequently, the jury returned a verdict finding Shumway guilty of murder in the second degree and attempted misdemeanor theft.

At sentencing, the district court denied Shumway's motion for a downward departure and sentenced him to serve a controlling sentence of 620 months.

STATEMENTS OF THE PROSECUTION WITNESSES

Shumway's primary claim relates to the State's reliance upon the testimony of John and Mary Finney to establish the basis for his murder conviction. He claims that John Finney's statements were impermissibly coerced by the investigating officers; thus, the statements were inherently unreliable and should not have been admitted against Shumway. He also argues that Mary Finney's testimony was tainted by association with John Finney's allegedly coerced statements.

The prosecution first argues that Shumway possesses no standing to challenge the coercive nature of the interrogation techniques used to elicit statements from John Finney because constitutional protections must be raised by the person claiming that such rights have been infringed. If Shumway was attempting to exclude the statements because Finney's right to self-incrimination had been violated, the State's position would be affirmed. State v. Valdez, 266 Kan. 774, 794, 977 P.2d 242 (1999) ("[T]he right against self-incrimination pertains only to the person incriminated by his own testimony, not to others incriminated by his testimony.").

However, the question presented by this appeal concerns Shumway's right to a fair trial.

"It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, [citation omitted], and even though there is ample evidence aside from the confession to support the conviction." Jackson v. Denno, 378 U.S. 368, 376, 12 L. Ed.2d 908, 84 S. Ct. 1774 (1964).

If John Finney's statements had been involuntarily coerced by police conduct, rendering such statements inherently unreliable, the use of the statements jeopardized Shumway's right to due process. Thus, he possesses standing to challenge the admission of such statements at trial. United States v. Gonzales, 164 F.3d 1285, 1289 (10th Cir. 1999) (concluding that, although a defendant's rights are not directly implicated by police coercion of a witness' statements, the defendant's right to due process is implicated by admission of false statements involuntarily elicited from the witness).

As the State contends, a defendant's allegation that a witness' testimony is untrue does not rise to the level of a constitutional violation. Determining the veracity of a witness' statements is a function of the jury. See Jackson, 378 U.S. at 386-87 n.13 ("Just as questions of admissibility of evidence are traditionally for the court, questions of credibility, whether of a witness or a confession, are for the jury.").

Therefore, Shumway's belief that John and Mary Finney fabricated a story to incriminate him, standing alone, does not provide him with standing to argue that his due process rights were violated. Shumway possessed all of the truth-testing devices of the criminal process, such as the right to confront and cross-examine the Finneys. Their veracity was a question for the jury.

However, where law enforcement officers overcome the will of an individual and coerce statements from the person supporting the officers' interpretation of the evidence, due process is offended regardless of the truth or falsity of the statements. Thus, the use of coerced statements from a material witness may be properly challenged by a criminal defendant.

To determine whether an accomplice witness' statements are voluntary, a court looks at the totality of the circumstances. Factors include the duration and manner of the interrogation; the ability of the individual on request to communicate with the outside world; the individual's age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry is whether the statements were the product of the free and independent will of the individual. The prosecution bears the burden of proving that an accomplice witness' statements are admissible by a preponderance of the evidence. Cf., State v. Lane, 262 Kan. 373, 385, 940 P.2d 422 (1997)

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During the Jackson v. Denno hearing held in this case, the evidence established that only John Finney was initially...