Appeal from Sedgwick district court; DAVID W. KENNEDY, judge.
1. In reviewing the trial court's denial of a criminal defendant's motion to suppress statements, this court determines, without reweighing the evidence, whether the facts underlying the trial court's decision were supported by substantial competent evidence. The trial court's legal conclusion drawn from those facts is reviewed de novo.
2. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.
3. In determining whether a confession is voluntary, a court is to look at the totality of the circumstances.
4. The burden of proving that a confession or admission is admissible is on the prosecution, and the required proof is by a preponderance of the evidence.
5. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused.
6. Factors to be considered in determining whether a confession is voluntary include: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language.
7. The exclusionary rule that prohibits the use of wrongfully obtained confessions also prohibits the use of any evidence obtained as a result of the wrongfully obtained statements under the fruit of the poisonous tree doctrine.
8. Evidence obtained unlawfully in violation of a defendant's constitutional rights is admissible under the inevitable discovery exception to the exclusionary rule where the prosecution can prove by a preponderance of the evidence that the unlawfully obtained evidence would have ultimately or inevitably been discovered by lawful means.
9. When a trial court refuses to recuse itself from a trial upon the defendant's request, a two-part test applies to determine whether the defendant received a fair trial or whether the defendant's due process rights were violated: (1) Did the trial judge have a duty to recuse himself or herself from this case because the judge was biased, prejudicial, or partial? (2) If the judge did have a duty to recuse and failed to do so, is there a showing of actual bias or prejudice to warrant setting aside the judgment of the trial court?
10. A judge has a duty to recuse himself or herself from a case in which the judge's impartiality might reasonably be questioned, including instances where the judge has a personal bias or prejudice concerning a party.
11. A judge should disqualify himself or herself if the circumstances and facts of the case create reasonable doubt concerning the judge's impartiality, not in the mind of the judge, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.
12. The term bias refers to the judge's mental attitude toward a party in the lawsuit. Bias and prejudice exist if a judge harbors a hostile feeling or spirit of ill will against one of the litigants, or undue friendship or favoritism toward one.
13. The issue of whether convictions violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights is a question of law subject to unlimited review.
14. Kansas appellate courts may consider an issue for the first time on appeal to serve the ends of justice or prevent denial of fundamental rights. A double jeopardy issue implicates a fundamental right of a defendant to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.
15. The Double Jeopardy Clause of the United States and Kansas Constitutions guarantee only the right not to be twice put in jeopardy for the same offense. The provisions permit a prosecution based upon the same acts but for different crimes if the legislature authorized the cumulative punishment.
16. If a legislature has explicitly authorized multiple punishments, the judicial inquiry is at an end; multiple punishments are authorized and proper.
17. When a double jeopardy claim arises from cumulative punishments imposed in one case, the overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition, are there two offenses or only one?
18. There are four nonexclusive factors to consider in determining whether convictions arise out of the same conduct and so violate the Double Jeopardy Clause: (1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.
19. If convictions are based on discrete conduct, i.e., committed separately and severally, there is no double jeopardy violation and the double jeopardy analysis ends. If the conduct is unitary, that is, it arises from the same conduct, the court must consider whether by statutory definition there are two offenses or only one.
20. In double jeopardy analysis, courts must discern whether the legislature authorized multiple punishments. As an aid to making this determination when the convictions are based on the same conduct, the court usually applies the same-elements test. Under the same-elements test, a court may examine whether the charges in the complaint or information under different statutes requires proof of an element not necessary to prove the other offense If so, the charges stemming from a single act do not violate the Double Jeopardy Clause.
21. The same-elements test for double jeopardy is a rule of statutory construction and is not a constitutional rule requiring courts to negate clearly expressed legislative intent. The rule is utilized to limit a court's power to impose convictions and punishment when the will of the legislature is not clear. Legislatures, not courts, prescribe the scope of punishments.
22. Through K.S.A. 2006 Supp. 21-3436(a), the Kansas Legislature expressed an intent that felony murder and any inherently dangerous felony listed in K.S.A. 2006 Supp. 21-3436(a) are separate offenses for which cumulative punishments may be imposed.
23. Double jeopardy does not attach to convictions under the felony-murder statute, K.S.A. 21-3401(b), and discharge of a firearm at an occupied dwelling, K.S.A. 2006 Supp. 21-4219(b), even if the charges arise from the same conduct.
24. Use of prior juvenile adjudications in a defendant's criminal history does not violate his or her constitutional rights under Apprendi v. New Jersey,
The opinion of the court was delivered by: Luckert, J.
Michael Walker was convicted on retrial of first-degree felony murder and criminal discharge of a firearm at an occupied dwelling. The trial court imposed a life sentence on the felony-murder conviction, to be served consecutive to a 79-month sentence for the criminal discharge conviction.
Walker appeals, arguing: (1) the trial court erred in denying his motions to suppress all statements and evidence discovered as a result of the police officers' interrogation of him; (2) the trial court erred in denying his "Motion to Change Judge"; (3) the trial court improperly sentenced him for both felony murder and discharge of a firearm at an occupied dwelling; (4) the trial court erred by including his juvenile adjudications in the calculation of his criminal history; and (5) his sentence for criminal discharge of a weapon was illegal and the length of his sentence shows vindictiveness on the part of the judge.
We reject each of these arguments and affirm Walker's convictions and sentences.
Walker's convictions and sentences arose from a drive-by shooting in which 16-month-old Lexus Mathis was mortally shot in the abdomen as she slept on a couch in her family's living room. Three days after the shooting, Walker was interrogated by police regarding the shooting. After his admission that he had driven the vehicle from which shots were fired at the Mathis' home, Walker was charged with committing the crimes of felony murder and criminal discharge of a weapon. A jury convicted Walker as charged.
On direct appeal, this court reversed Walker's convictions after determining the trial court had improperly admitted into evidence statements made by Walker to police after Walker had clearly invoked his Fifth Amendment right to counsel during a custodial interrogation. State v. Walker, 276 Kan. 939, 80 P.3d 1132 (2003) (Walker I).
The case was remanded and Walker was tried a second time. He was again convicted of first-degree felony murder and criminal discharge of a firearm.
A detailed description of the facts related to the shooting and the investigation can be found in State v. Lowe, 276 Kan. 957, 80 P.3d 1156 (2003), in which this court affirmed the conviction of Walker's co-defendant, Jermane Lowe. Highly summarized, the evidence at Walker's second trial established that Walker, Lowe, and others left a club at closing. The group dispersed in separate cars. While some of the group were driving around, another car approached and fired shots. In response, Lowe, Walker, and perhaps others decided to drive to the house of a rival gang member and fire gunshots at the home. One of these shots struck Lexus Mathis.
Substantial evidence linked Walker and Lowe to the drive-by shooting. Jendayi Maples told police she was talking to Walker on her cell phone around 3:50 a.m., the approximate time of the shooting. During the conversation she heard Walker talking to Lowe and heard Walker ask Lowe if he "got the Tec," a semiautomatic weapon. Maples heard "that's the house," a series of about nine gunshots, and a car speeding away. Then, the phone line went dead. Frightened, she immediately called Walker back on his cell phone. He assured her everything was fine but his ears were ringing from the shots. Cell phone records verified that the two were talking at the time Maples reported, which was also the time witnesses reported hearing the shots fired at the Mathis' home.
Also during the investigation, police found shell casings from three types of cartridges near the curb directly across from the house. The State argued to the jury that the location of the casings indicated that the car had come to a stop while shots were fired from three guns and then additional shots were fired while the car was moving away.
There was evidence that on the night of the shooting Lowe was driving a maroon 1989 Toyota Camry belonging to Scott Shaffer. When Walker returned the Camry to Shaffer, the windshield was damaged from projectiles and the trunk latch was broken. Shell casings were found in the car. Ballistics testing revealed that the casings found in the car were fired from the same gun as some of the shells found at the scene of the shooting. The State argued that the physical evidence of where the shell casings were located in the car supported a conclusion that the driver of the car had fired shots. Latent fingerprints in the car did not match Lowe's or Walker's.
In his defense, Walker presented the testimony of Lowe, who denied that Walker had been with him on the night of the shooting. Another witness testified that Lowe asked the witness to go with him. The witness described the car that Lowe was driving; the description did not match the description of the car which Walker had driven that night.
Issue 1: Did the Trial Court Err in Denying the Defendant's Motions to Suppress All Statements and Evidence Discovered as a Result of the Police Interrogation?
The police interrogation of Walker occurred at the Wichita Police Investigations Bureau. Walker came to the bureau voluntarily after hearing that police wanted to speak with him. Walker was advised of his Miranda rights, and Walker indicated that he understood and wished to waive those rights and speak to the police. He initialed and signed a Miranda waiver form. Several hours into the interview, Walker made inculpatory statements, admitting to driving the car involved in the shooting.
Sometime after making that statement, Walker said, "If I could talk to my grandma right now, I just need to talk to a lawyer, man -- I can't wait till I go downstairs." In Walker I, this court held that the police were required to honor that request to speak to an attorney and should have stopped the interrogation. 276 Kan. at 953. Their failure to cease questioning required the suppression of all statements subsequent to Walker's request for counsel.
Upon retrial, the trial court followed the holding in Walker I by suppressing all statements made after Walker's request for counsel. However, Walker sought a broader order of suppression, arguing his statements were not voluntary but rather were elicited through coercive tactics. He also argued that because the detectives continued questioning him after he asserted his right to counsel, all evidence discovered as a direct result of the interrogation should have been excluded as "fruit of the poisonous tree."
Based upon the trial court's ruling that the statement was voluntary, the State, over defense counsel's objection, introduced into evidence a single statement from Walker's police interrogation: his admission to being the driver of the vehicle involved in the shooting. The statement was admitted through the testimony of Sergeant Alex Robinson. On cross-examination, the sergeant acknowledged that during the interview Walker also said he was not the driver.
In his motion to suppress before the retrial, Walker argued the statement was not voluntary, his right to remain silent had been violated, and, based upon the ruling in Walker I, other evidence had to be suppressed under the "fruit of the poisonous tree" doctrine.
On appeal, Walker mentions the violation of his right to remain silent but does not cite to the record or brief the argument. An issue not briefed by the appellant is deemed waived or abandoned. State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004). Walker does, however, argue the issues of voluntariness and the issue of whether evidence relating to Shaffer's car was fruit of the poisonous tree.
In reviewing the trial court's denial of a criminal defendant's motion to suppress statements, this court determines, without reweighing the evidence, whether the facts underlying the trial court's decision were supported by substantial competent evidence. The trial court's legal conclusion drawn from those facts is reviewed de novo. State v. Rupnick, 280 Kan. 720, 727, 740, 125 P.3d 541 (2005); see also State v. Kirtdoll, 281 Kan. 1138, 1144, 136 P.3d 417 (2006).
Substantial evidence is "evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]" State v. Luna, 271 Kan. 573, 574-75, 24 P.3d 125 (2001).
Walker takes issue with the police officers' interrogation techniques and the length of time he was kept in the interrogation room. See Jackson v. Denno, 378 U.S. 368, 12 L.Ed. 2d 908, 84 S.Ct. 1774 (1964) (coercion during an interrogation can be mental as well as physical). According to Walker, he was coerced in that he had little experience with interrogations, was isolated from outside help during this period of questioning, and was threatened by police.
The issue of voluntariness of the confession had been raised before Walker's first trial and was also raised on appeal in Walker I. After the Jackson v. Denno hearing in Walker I, the trial court made detailed findings on the record with regard to its conclusion that Walker's statements were voluntary. On appeal, the Walker I court did not reach the issue, leaving the question open for further argument and evidence. 276 Kan. at 953. On remand, no additional evidence was presented. Rather, the trial judge, who had presided over the first trial as well, considered the record from the evidentiary hearing on the initial motion to suppress. The trial court essentially referred to its ruling prior to Walker I as the "law of the case."
Considering the appellate argument in Walker I, this court summarized the evidence from the evidentiary hearing which served as the ...