State v. Speed

• Decision Date: 29 May 1998
• Docket Number: No. 77008,77008
• Parties: STATE of Kansas, Appellee, v. Stacey W. SPEED, Appellant.
• Court: Kansas Supreme Court

Page 13

961 P.2d 13

265 Kan. 26

STATE of Kansas, Appellee, v. Stacey W. SPEED, Appellant.

No. 77008.

Supreme Court of Kansas.

May 29, 1998.

Syllabus by the Court

1. The determination of whether a confession is voluntary under the Fourteenth Amendment requires a case-by-case evaluation to determine whether coercion was impermissibly used in obtaining a confession. Coercion in obtaining a confession from an accused can be mental as well as physical.

2. Relevant factors in determining whether a confession is a product of free will of an accused include (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused's age, intellect, and background, and (5) fairness of the officers in conducting the interrogation.

3. In determining whether the trial court's determination on a motion to suppress is supported by substantial competent evidence, an appellate court accepts as true the evidence and all inferences to be drawn therefrom supporting the finding of the trial court.

4. When a suspect makes a statement which may be ambiguous as to whether the suspect is asserting a right to remain silent or to confer with counsel, the interrogator may, but is not required to, ask questions to clarify, and the interrogator may continue questioning.

5. Kansas follows the majority rule that a conversation between a suspect and a police officer during interrogation need not be recorded as a prerequisite for admissibility at trial.

6. The statutes of limitation for aggravated robbery and aggravated kidnapping shall not include any period in which the accused is absent from the state. K.S.A. 21-3106 is unambiguous and only requires that the accused be absent from the state in order to toll the statute of limitations regardless of whether the absence is voluntary or involuntary.

7. K.S.A. 60-460(i)(2) is an exception to the hearsay rule authorizing the admission of those statements made within the context of a conspiracy. Statements are admissible under this exception where there is evidence other than the proffered out-of-court statement which establishes a substantial factual basis for a conspiracy between the defendant and the declarant.

8. Generally, the question of whether a new counsel should be appointed for the defendant is left to the discretion of the trial court. To warrant substitute counsel, a defendant must show justifiable dissatisfaction with appointed counsel. Justifiable dissatisfaction sufficient to merit substitution of counsel includes a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between the attorney and the defendant.

9. Before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel's performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial.

10. In the administration of justice, the trial judge is charged with the preservation of order in his or her court with the duty to see that justice is not obstructed by any person or persons whatsoever. A large measure of discretion resides in the trial court in this respect, and its exercise will not be disturbed on appeal unless it appears that prejudice resulted from the denial of a legal right.

11. Collateral estoppel means nothing more than double jeopardy when applied in the context of a criminal case. The Fifth Amendment prohibition against double jeopardy does not apply to prohibit prosecutions by separate sovereignties.

12. K.S.A. 21-3108(3)(a) provides that a prosecution is barred if the defendant was formally prosecuted in a court of general jurisdiction of a sister state for a crime that is within the concurrent jurisdiction of this state, if the former prosecution resulted in a conviction or acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the offense was not consummated when the former trial began. In order for both states to have concurrent jurisdiction over the same crime, the two different courts must have jurisdiction over the subject matter of the controversy, with either court being the proper forum for its resolution.

13. The defendant has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence, however weak, unsatisfactory, or inconclusive the evidence may appear to the court. Even the unsupported testimony of the defendant alone, if tending to establish such lesser offense, is sufficient to require the court to so instruct. However, the evidence must be substantial and there must be evidence which, when viewed in a light most favorable to the defendant, would justify a jury finding in accordance with the defendant's theory.

14. The rule in Kansas with regard to felony murder is that the jury need not be instructed on lesser offenses unless evidence of the underlying felony is weak and inconclusive. Where the evidence of the underlying felonies are neither weak nor inconclusive, no lesser included offense instructions with regard to felony murder are required.

15. Withdrawal is a defense to a charge of conspiracy. Withdrawal is not a defense to a charge of aiding and abetting, and a trial court is under no obligation to instruct on withdrawal as a defense to aiding and abetting.

Willard L. Thompson, Jr., Wichita, argued the cause and was on the brief for appellant.

Debra S. Peterson, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with her on the brief for appellee.

DAVIS, Justice:

A jury determined that Stacey W. Speed was guilty of first-degree murder, felony murder, aggravated robbery, and aggravated kidnapping in the death of Victor Williams. He was sentenced to life on the first-degree murder charge, 170 months on the aggravated kidnapping charge, and 85 months on the aggravated robbery charge. The last two sentences were imposed to run concurrent with the life sentence. The defendant both through counsel and in separate memoranda, raises numerous questions in this appeal. We affirm the convictions and sentence imposed.

Victor Williams owned a stereo shop in Wichita. On October 25, 1993, Williams' body was discovered in his duplex by his former manager and another employee. Williams had been stabbed six times, four times in the neck, with one stab wound perforating his jugular vein and another his carotid artery. One hand had duct tape on it and the other hand bore evidence of duct tape. Williams' garage door was open and his BMW was missing. His duplex had been ransacked. Fingerprints were taken at the scene, but none matched those of the defendant.

On October 30, 1993, the sheriff of Okmulgee County, Oklahoma, received a call from the sheriff's office of the neighboring county, Okfuskee County, Oklahoma, stating that the defendant's father had contacted the office. According to the defendant's father, the defendant had stolen his father's diary and address book and was driving a BMW automobile that the father believed to be stolen from a man who had been murdered in Wichita a few days earlier. The sheriff of Okmulgee County was notified that the BMW the defendant was driving had been found parked in a motel near Henryetta, Oklahoma.

He had been further informed by the defendant's father that his son was a black male in the company of an older white female from Pittsburg County, Oklahoma, and that his son would be returning to the motel to pick up the BMW.

The sheriff of Okmulgee County found the BMW in a parking lot near the motel and, based on the VIN of the vehicle, discovered that it had been stolen from Victor Williams in Wichita and might be in the possession of the defendant. He parked out of sight near the BMW and, approximately 7 hours later, he and other officers were still on the stakeout when they saw a car driven by an older white female, with a young black male as a passenger, drive through the parking lot, turn around, and start to drive back out. The car had a Pittsburg County license tag, and when the sheriff stopped the vehicle, the white female ran towards the sheriff, stating, "I haven't done anything." He and the other officers approached the vehicle with guns drawn. When the driver, who was the defendant, identified himself as "Stacey," he was arrested for possession of a stolen vehicle. A key later identified as belonging to the BMW was found on the defendant's person.

After the defendant was arrested and taken into custody in Oklahoma, Wichita authorities were allowed to question him about the murder in Kansas. The defendant invoked his Miranda rights, and the Wichita police officers stopped the questioning and began to leave. At that time, the defendant asked Ronald Johnson, a detective with the Okmulgee County sheriff's office, if he could talk to him. Since Johnson did not know anything about the occurrence in Wichita, he advised the defendant that at least one of the Wichita police officers would have to sit in. Permission was granted by the defendant. Although the defendant did not invoke his Miranda rights again, he claims he was confused and that his statements were coerced. During the trial, the statements of the defendant were admitted during the State's case through Officer Landwehr of the Wichita Police Department.

Landwehr testified that at first the defendant told him that the BMW he...