State v. White

• Decision Date: 05 August 2022
• Docket Number: 122,039
• Citation: 514 P.3d 368
• Parties: STATE of Kansas, Appellee, v. Johnny C. WHITE, Appellant.
• Court: Kansas Supreme Court

514 P.3d 368

STATE of Kansas, Appellee,

v.Johnny C. WHITE, Appellant.

No. 122,039

Supreme Court of Kansas.

Opinion filed August 5, 2022.

Kasper Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Julie A. Koon, assistant district attorney, argued the cause, and Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Stegall, J.:

In 2014, Johnny C. White pled guilty to aggravated indecent liberties with a child after admitting to raping his teenage granddaughter. In 2017, C.U., a friend of White's granddaughter, disclosed that White had sexually abused her several years prior during a sleepover. The State then charged White with two counts of aggravated indecent liberties with a child, and a jury convicted White of the first count only. A Court of Appeals panel affirmed White's conviction, and we granted his petition for review. Today we affirm the Court of Appeals and affirm White's conviction.

FACTS

In May 2017, C.U. disclosed to her aunt that she had been sexually violated several years earlier by her friend's grandfather. During a sleepover at the friend's house, C.U. said that she woke to find her panties pulled down by a man who was touching her vagina. The man then took her hand and forced her to touch his penis. This happened in the early morning hours while C.U. was on the couch in the living room and the rest of the girls were asleep on the floor.

C.U. recalled that she was approximately eight years old when the touching occurred. The home was owned by White's daughter and her husband, the parents of C.U.’s friend. White was living in the basement of the home. During that time frame C.U. spent the night at that house nearly every weekend.

At the time of C.U.’s disclosure in 2017, White was serving a sentence at the Hutchinson Correctional Facility as the result of his 2014 guilty plea and conviction. After interviewing C.U., Wichita Detective Daniel Ribble interviewed White at the prison. White consistently denied any touching of C.U. throughout the hour-long interview. White also agreed to take a polygraph examination.

A few weeks later Detective Ribble returned to the prison with a KBI agent trained in the administration of polygraph examinations. After the examination, the agent concluded that the polygraph results showed that White "was not truthful in his responses to the relevant questions" regarding C.U.’s accusations. Ribble returned to the room, and he and the agent continued interviewing White. They told White he was not being truthful and that he had failed the polygraph. They suggested that C.U. had no reason to make up her story, that she was telling the truth, and that the only way to give C.U. closure and healing would be to confess. Eventually, when asked "how many times" the touching happened, White finally responded: "Once." He then admitted that "she's not lying to you."

White said that he came upstairs in the early morning hours, before it was light, to use the bathroom. He admitted he saw C.U. sleeping on the couch, sitting down on the couch, and touching her vagina. White continued to deny that C.U. had touched his penis, reiterating that "she never touched any part of my body." The State charged White with two off-grid counts of aggravated indecent liberties with a child. Count one concerned C.U.’s allegation that White touched C.U.’s vagina, and count two concerned her allegation that White forced C.U. to touch his penis.

Before trial, the State moved to exclude from evidence any mention of the use of the polygraph during the interrogation, seeking to only admit the portion of the interview that contained the confession. White filed a motion to suppress the confession, arguing that it was coerced and involuntary. The State also sought to admit White's 2014 videotaped confession as propensity evidence under K.S.A. 2021 Supp. 60-455(d) over defense objection.

After a hearing on the motions, at which White testified, the district court ordered that neither party elicit any testimony related to the polygraph examination. The court found White's 2017 confession admissible because it was freely, voluntarily, and intelligently made. It also ruled that the State could present the 2014 video confession as propensity evidence under K.S.A. 2021 Supp. 60-455(d). In addition to the video, the district court admitted the journal entry of conviction and the 2014 interrogating officer Detective Richard Gerdsen's foundation testimony.

Just before the jury was sworn in, White stipulated in writing to having been convicted of aggravated indecent liberties with a child in 2014. In addition to the stipulation, the State played the 2014 confession video for the jury. In that video, White repeatedly described the very graphic details of the sexual encounters with his granddaughter in response to Detective Gerdsen's questions. White reiterated many times that he "tried to resist the temptations, she's my granddaughter and its wrong." White discussed how he had attempted suicide and talked about his desire to kill himself because he could not live with the shame and the guilt.

On the fourth day of trial, the State moved to amend the date range in the information to match C.U.’s trial testimony. Previously, C.U. had said the touching occurred when she was around eight years old; but at trial, in response to questions by defense counsel, she said it occurred when she was "seven [or] eight." Because the original information's date range was from January 1, 2009 to December 31, 2009, the State sought to amend the information to include the dates between January 25, 2008 and December 31, 2009 to match C.U.’s testimony. The district court permitted the amendment over defense objection.

The jury asked two questions during deliberations: (1) "Was the interview on Aug[ust] 17th or 2nd interview with the two officers a sworn testimony by the defendant?" and (2) "May we have the transcripts for the interviews?" Before the district court could respond to these questions, however, the jury returned its verdict. The jury convicted White on count one (that he touched C.U.) and acquitted him on count two (that he forced C.U. to touch him). The district court sentenced White to a hard 25 life sentence.

The Court of Appeals assumed without deciding that it was error for the district court to admit the 2014 confession, because even if it was error, it was harmless. State v. White , 60 Kan. App. 2d 458, 486, 494 P.3d 248 (Kan. App. 2021). The panel identified no other trial errors and affirmed White's conviction. 60 Kan. App. 2d at 487, 494 P.3d 248. We granted White's petition for review.

DISCUSSION

White argues four issues on appeal: (1) his right to present a defense was violated by exclusion of the polygraph; (2) the district court abused its discretion when it permitted the State to amend the information; (3) the admission of his 2014 videotaped confession was reversible error; and (4) cumulative error denied him a fair trial. We consider each issue in turn.

The district court's exclusion of polygraph evidence did not violate White's right to present a defense.

White first argues that exclusion of the fact that he took a polygraph rendered him unable to argue to the jury that his confession was unreliable. He relies on Crane v. Kentucky , 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986), to argue the constitutional right to present a complete defense "would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant's claim of innocence."

We exercise unlimited review when the defendant claims the district court interfered with his constitutional right to present a defense. State v. Seacat , 303 Kan. 622, 638, 366 P.3d 208 (2016).

When a district court excludes evidence at trial, the party seeking to admit that evidence must make a sufficient substantive proffer to preserve the issue for appeal.

State v. Swint , 302 Kan. 326, 332, 352 P.3d 1014 (2015). A formal proffer is not required, and we may review the claim as long as "an adequate record is made in a manner that discloses the evidence sought to be introduced." 302 Kan. at 332, 352 P.3d 1014. The purpose of such a proffer is two-fold—first, to procedurally preserve the issue for review, and second, to substantively demonstrate lower court error. Here, while we find that White's proffered testimony at the pretrial motions hearing preserved the issue for our review, we conclude that the substance of that proffer is insufficient to support his claims made on appeal.

The substance of White's proffered testimony at the district court is as follows:

"[Counsel] Can you tell the Court, you know, all the various reasons why you changed from maintaining that you did not do this to saying that you did.

"[White] Well, I've suffered from blackouts for most of my life. When the detective asked me, well, maybe I did this and I just don't remember doing it, then the best answer I could give was, well, it could be possible I did this and just don't remember doing it. But after going over the police reports with you and reading all these statements and stuff like this, I don't—I don't believe I did anything to that girl." (Emphasis added.)

Now, on appeal, White argues that the jury could not make "a fully informed decision about the veracity of the confession" without having the evidence that White took "an inherently unreliable" polygraph examination. In his appellate brief, White cites to Crane v. Kentucky where the Court held that a defendant must be able to answer "the one question every rational juror needs answered: If the defendant is innocent, why did he previously admit his guilt?" 476 U.S. at 689, 106 S.Ct. 2142. The Court found that excluding the circumstances that prompted the...