State v. Taylor, 53465

• Decision Date: 03 April 1982
• Docket Number: No. 53465,53465
• Citation: 642 P.2d 989,231 Kan. 171
• Parties: STATE of Kansas, Appellee, v. Harry L. TAYLOR, Appellant.
• Court: Kansas Supreme Court

Page 989

642 P.2d 989

231 Kan. 171

STATE of Kansas, Appellee, v. Harry L. TAYLOR, Appellant.

No. 53465.

Supreme Court of Kansas.

April 3, 1982.

Syllabus by the Court

1. 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.

2. Custodial interrogation under Miranda refers not only to express questioning but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminatory response from the suspect.

3. A request for a person to identify himself is not custodial interrogation within the meaning of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

4. The use and extent of rebuttal evidence rests in the sound discretion of the trial court.

5. In an appeal from a conviction of second degree murder the record is examined and it is held : The trial court did not err in 1) admitting statements made by the defendant prior to his being given Miranda warnings; 2) admitting a revolver seized in a police "sting" operation; and 3) admitting evidence of the defendant's participation in the "sting" operation.

Joseph D. Johnson, Topeka, argued the cause and was on the brief for appellant.

Frank Yeoman, Jr., Asst. Dist. Atty., argued the cause and Gene M. Olander, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee.

HERD, Justice:

Harry L. Taylor was convicted by a jury of second-degree murder (K.S.A. 21-3402) on March 4, 1981. This is an appeal from that conviction.

This prosecution arose from the following events. Efelton Sanders was the owner and operator of a grocery and gambling establishment in Topeka called the Party Shack. Melvin Walker, Jr., who Sanders considered a stepson, worked there on occasion. Sanders kept a .38 pistol at the Party Shack. Walker also had access to the gun. On July 12, 1980, prior to leaving on a trip to Kansas City with his friend, Harry L. Taylor, Walker discovered the gun had disappeared. Walker accused Taylor of taking the gun.

Walker's accusations against Taylor continued off and on until November 21, 1980. On that day Taylor and a friend were helping Taylor's sister move to a new apartment. In the course of this endeavor, Taylor stopped at the Party Shack for pop and cigarettes. Walker was the store clerk. He refused to wait on Taylor. Taylor asked Walker outside for a private discussion. Taylor proceeded outside armed with a gun he possessed for his "protection." Walker followed and as he pushed the screen door open Taylor shot and killed him. Taylor said he thought Walker also had a gun and he was merely "beating Melvin to the draw." Thereafter, Harry L. Taylor was arrested and charged with first-degree murder. The jury conviction followed.

Appellant claims the trial court erred in refusing to suppress statements made to the police prior to Miranda warnings being given. When Harry Taylor was stopped for questioning the officer asked him for his name. Appellant answered, giving a fictitious name. The officer knew it was Harry Taylor and proceeded to frisk him. The appellant was then taken to the police station and again asked his name. He replied "Harry Taylor, why should I lie anymore." At this time, appellant was advised of his constitutional rights, which he voluntarily waived.

Appellant argues the statements he made before the Miranda warning are inadmissible. In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the U. S. Supreme Court held "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination."

The admissibility of appellant's statements depends upon whether they were the result of a "custodial interrogation" or an "investigatory interrogation." A custodial interrogation, which requires that Miranda warnings be given, involves "significant restraints on (a subject's) freedom of movement which are imposed by some law enforcement agency." State v. Greenberg, 4 Kan.App.2d 403, 405, 607 P.2d 530, rev. denied 228 Kan. 807 (1980); State v. Brunner, 211 Kan. 596, Syl. P 2, 507 P.2d 233 (1973). In State v. Bohanan, 220 Kan. 121, 128, 551 P.2d 828 (1976), it was recognized, "that general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process does not constitute custodial interrogation requiring a Miranda warning." An investigatory interrogation, requiring no warning, is defined as "the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way." 220 Kan. at 128, 555 P.2d at 828.

Clearly, Taylor's initial untruthful identification of himself is admissible as the product of an investigatory interrogation. Moreover, K.S.A. 22-2402 allows an officer to "stop any person in a public place whom he reasonably suspects is committing, has committed, or is about to commit a crime and may demand of him his name, address and an explanation of his actions." Taylor's objections to the court admitting his first statement to the police are without merit.

However, the statements made at the police station before defendant was advised of his rights are more troublesome. Obviously, Taylor was in custody at the station. There is no reason the officers should not have advised him of his Miranda rights as soon as he arrived there. Unless the initial question at the police station about appellant's identity is not considered "interrogation," the court erred in admitting it. In Miranda the court stated that "(b)y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612. More recently, in Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the court held:

"(T)he term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation."

The question asked of appellant at the police station was a form of express questioning but it was merely a request for appellant to identify himself. This could easily gravitate in favor of an accused by preventing...