State v. Smith
| Decision Date | 25 January 1975 |
| Docket Number | No. 47619,47619 |
| Parties | STATE of Kansas, Appellee, v. Nathaniel SMITH, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. When a trial court, pursuant to the provisions of K.S.A. 22-3215, conducts a preliminary inquiry on the admissibility of an extrajudicial statement given by an accused, and determines the statement was freely, voluntarily and intelligently given and admits the statement into evidence at the trial, this court on appellate review will accept such determination if it is supported by substantial competent evidence.
2. Evidence tending to establish that a defendant was in an excited mental state at the time a statement was given, does not affect the admissibility of the statement, but bears on the weight and effect to be given the statement.
3. A verdict of not guilty on a count of an information charging rape is not inconsistent with a verdict of guilty of murder in the second degree under another count of the information charging murder in the first degree.
4. In a prosecution for first degree murder and rape, wherein a verdict of guilty of second degree murder and not guilty of rape was returned by the jury, the record is examined and it is held-reversible error is not shown.
Darrel W. Frogley, Kansas City, argued the cause and was on the brief for appellant.
Nick A. Tomasic, Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.
This is an appeal from a conviction of murder in the second degree K.S.A. 21-3402.) Defendant was charged and tried on a two count information. In count No. 1 he was charged with murder in the first degree (K.S.A. 21-3401) and in count No. 2 with rape. Defendant was convicted of murder in the second degree on count No. 1 and acquitted of the charge of rape on count No. 2. Defendant's defense at trial was that the killing was in self-defense and that the alleged rape was a voluntary sexual agreement between the victim and himself.'
The estate's evidence consisted of a statement made by defendant, the testimony of several police officers, and the testimony of Debra Chase, the alleged victim of the rape and the wife of the murder victim, Roosevelt Chase. Although there was considerable conflict in the testimony, the sufficiency of the evidence is not challenged on appeal.
The events giving rise to the charges occurred during the night of July 11, 1973. Defendant resided in an apartment house in Kansas City, Kansas. His apartment was on the same floor and across the hall from the apartment occupied by the Chases.
Debra Chase testified that during the evening in question defendant confronted her in her apartment and forced her to accompany him to his apartment where he bound her with an extension cord, taped her mouth, and raped her. Defendant's version was that Debra made overtures, voluntarily accompanied him to his apartment and engaged in sexual intercourse. While these events were taking place Debra's husband (Roosevelt) returned to the apartment building, knocked on defendant's door, and inquired if his wife was there. Defendant unsuccessfully attempted to convince Chase that his wife was not in defendant's apartment. Failing to convince Chase, defendant went out into the adjacent hallway where he was met by Chase who, defendant said, was carrying a gun. Debra testified that defendant had the gun at the time he raped her and also had a knife with which he had threatened her.
According to defendant, he and Chase had previously arranged to handle some marijuana which he had hidden in his sister's garage. According to defendant's statement, after the confrontation with Chase in the hallway, defendant went out to his car, which would not start; then he came back into the apartment house and told Chase, whereupon Chase offered to drive defendant to his sister's house. After defendant and Chase arrived at the sister's house an argument ensued-first outside the house and later in the garage, where defendant and Chase got into a fight. According to defendant he was armed with a knife and Chase was armed with the gun. In the course of the ensuing scuffle, defendant got the gun away from Chase and shot him once; Chase fell in a corner of the garage, behind an automobile. Defendant at this point had the gun in one hand and the knife in the other. Defendant said that after Chase was shot he commenced shouting for help and trying to get back on his feet. At this point, defendant said-'I got scared and stabbed him again in the chest three or four times.' Defendant stated that he left the garage and proceeded to the basement of his sister's house where he took a shower and changed clothes.
Defendant's brother-in-law, Clarence Williams, came down to the basement where defendant told him what had happened. Defendant turned over the .38 caliber revolver to his brother-in-law. Defendant's sister, Carmen Williams, and her husband, Clarence, persuaded defendant to accompany them to the police station. Before reaching the station, however, defendant jumped out of the Williams' car and ran to a girl friend's apartment. Mrs. Williams later contacted her brother and again persuaded him to agree to call the police and surrender himself. Mrs. Williams was with defendant when he gave his statement to Detective Parks.
At the police station Detective Parks immediately had defendant sign a waiver of rights and began interrogating him concerning the killing. After the statement was completed, charges were filed against the defendant.
Defendant's first point of error is that his statement was erroneously admitted into evidence. Defendant advances several arguments in this regard. As we have noted, the statement in question was taken by Detective Parks of the Kansas City Police Department, and that, prior to any interrogation, defendant was given a full 'Miranda warning' about which there is no dispute. Defendant challenged the statement by a motion to suppress before trial (K.S.A. 22-3215). After hearing evidence the trial court denied the motion. Defendant's first argument on this point is that Detective Parks, by promising to speak to the judge if defendant cooperated, induced him to make the statement. As narrated in the record, the testimony of Parks is that after a brief discussion about the killing of Chase, Parks told defendant that if he cooperated with the police that Parks would make the fact known to the judge. Parks further testified during the hearing on defendant's motion to suppress that he did tell the trial judge of his promise to defendant. Parks made no representation to defendant that the court might be more lenient nor did Parks make any representation which could have generated any hope of immunity on the part of defendant. When a trial court, pursuant to the provisions of 22-3215, conducts a preliminary inquiry on the admissibility of an extrajudicial statement given by an accused and determines the statement was freely, voluntarily and intelligently given, and admits the statement into evidence at the trial, this court, on appeal, will accept such determination if it is supported by substantial competent evidence. (State v. Law, 214 Kan. 643, 522 P.2d 320; State v. Brunner, 211 Kan. 596, 507 P.2d 233; and State v. Harden, 206 Kan. 365, 480 P.2d 53.) Statements by interrogating officers, similar to that made by Detective Parks, have been held not to be such an inducement as would vitiate a confession. For example in Hargett v. State, 235 Ark. 189, 357 S.W.2d 533, the interrogator told accused he would 'help him all I could' if he confessed. In The People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 33, cert. den. 380 U.S. 961, 85 S.Ct. 1104, 14 L.Ed.2d 152, the officer told defendant it would go easier in court for you if you confessed. (See, also, Brooks v. State, (Del.), 229 A.2d 833, and The People v. McGuire, 39 Ill.2d 244, 234 N.E.2d 772, cert. den. 393 U.S. 884, 89 S.Ct. 193, 21 L.Ed.2d 160.) The record discloses that defendant had given a part of his confession before he asked Parks to convey the fact of his cooperation to the judge. While there was some conflicting testimony surrounding the giving of the statement, we believe there was ample evidence to support the trial court's determination.
Concerning his statement, defendant also complains that Parks rephrased some of defendant's words. Parks testified that defendant had ample opportunity to read the statement, that some changes were made, but that defendant initialed each change, signed each page, and signed the statement after reading it in...
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