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State v. Scott

May 16, 2008; as amended July 15, 2008

STATE OF KANSAS, APPELLEE,
v.
GAVIN D. SCOTT, APPELLANT.



Appeal from Sedgwick district court, DAVID W. KENNEDY, judge.

SYLLABUS BY THE COURT

1. The question of whether an information is sufficient to give the district court jurisdiction is a question of law over which this court has unlimited review.

2. In analyzing whether an information is sufficient, this court applies one of two tests, depending on when the objection is raised. When a defendant files a motion for arrest of judgment based on a defective information, the pre-Hall standard applies. See State v. Hall, 246 Kan.728, 764, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v State, 276 Kan. 428, 78 P.3d 40 (2003). Under this standard, an information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective, and a conviction based on such an information must be reversed.

3. An information drawn in the language of the substantive criminal statute is sufficient to withstand legal challenge. Even under the pre-Hall standard, an information is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or others of the same import so long as the defendant is fully informed of the particular offense charged and the court is able to determine under what statute the charge is founded.

4. Multiplicity is the charging of a single offense in more than one count of a complaint or information. It creates the potential for multiple punishments for a single offense, violating the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.

5. A claim of multiplicity raises a question of law subject to unlimited appellate review.

6. The Double Jeopardy Clause is not violated where the legislature specifically authorizes cumulative punishment under two statutes for the same offense.

7. K.S.A. 21-3107(2)(d) (Furse) is a clear expression of legislative intent that a defendant cannot be convicted of both a crime charged and a lesser included offense arising out of the same conduct.

8. A suspect's invocation of his or her right to remain silent must be scrupulously honored. If the invocation is ambiguous, an interrogator may, but is not required to, ask questions to clarify. If the interrogator does not seek clarification, he or she may continue questioning but risks a later ruling the invocation was not ambiguous and any subsequent statements are thus inadmissible.

9. A suspect can control the time at which questioning occurs through the use of his or her power to exercise the right to remain silent. However, in doing so the suspect must still unequivocally invoke the right.

10. Under the facts of this case, we hold an arrestee's request stating, "Can we finish this in the morning" or "Let's finish this in the morning" did not constitute an unambiguous invocation of the right to remain silent.

11. An unwarranted delay of a defendant's first appearance under K.S.A. 22-2901 is not in and of itself a denial of due process; the defendant must demonstrate prejudice.

12. A confession obtained during a period of illegal detention is not inadmissible if voluntarily made and not the product of the detention. Under the facts of this case, mere speculation the defendant might not have confessed if he had been appointed counsel and that he would have been appointed counsel except for a delay in his first appearance is not sufficient to demonstrate the delay caused the confession.

13. When considering challenges to jury instructions, we are required to consider the instructions as a whole and not isolate any one instruction. Even if erroneous in some way, instructions are not reversible error if they properly and fairly state the law as applied to the facts of the case and could not reasonably have misled the jury.

14. PIK Crim. 3d 56.00-A(1) and (3)(f) is legally insufficient in stating the elements of capital murder under K.S.A. 21-3439(a)(6).

15. Under the facts of this case, the trial court did not err in instructing the jury that "'premeditation' means to have thought over the matter beforehand. There is no particular time period for premeditation." However, trial courts are urged to use the definition of premeditation stated in PIK Crim. 3d 56.04(b) (2004 Supp.).

16. A prosecutor has the duty to refrain from making improper, leading, inflammatory, or irrelevant statements to the jury. This duty is heightened in capital cases.

17. We employ a two-step analysis in considering claims of prosecutorial misconduct. First, the court must determine whether the prosecutor's statements were outside the wide latitude for language and manner a prosecutor is allowed when discussing the evidence. If the first step of the analysis has been met, we consider whether the comments constitute plain error, that is, whether the statements were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial.

18. In determining whether a new trial should be granted because of prosecutorial misconduct under the second step in our analysis, we consider: (1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling, and before the third factor can ever override the first two factors, an appellate court must be able to say both the K.S.A. 60-261 and the Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967), harmlessness tests have been met.

19. It generally is improper for the State to argue the jurors' oath obligates them to return a particular verdict because such language poses a risk of diverting the jury from its duty of deciding the case on the basis of the evidence and the applicable law.

20. A prosecutor may refer to the defendant as a murderer or killer in the course of arguing the evidence shows the defendant committed the murder. However, where such statements imply the prosecutor believes something other than the evidence shows the defendant to be a murderer, such as the prosecutor's belief the defendant "looks like a murderer" or has "cold-blooded killing eyes," or the statements do not relate to the evidence but are simply made to inflame the jury, such as a comment telling the jurors they are "eight feet from a killer," the argument will be held improper.

21. A prosecutor's comment on the credibility of a witness is improper.

22. It is improper for a prosecutor to "vouch" for the credibility of a witness. However, it is not improper for a prosecutor to argue that of two conflicting versions of an event, one version is more likely to be credible based on the evidence.

23. The statements made by a co-defendant's attorney during closing argument in a separate trial do not qualify as admissions of a party opponent under K.S.A. 60-460(g), and the trial court erred in admitting the statements under the facts of this case.

24. Cumulative trial errors may be so great as to require reversal of a defendant's conviction where, under the totality of the circumstances, they prejudice the defendant and deny him or her a fair trial. However, no prejudicial error may be found under the rule of cumulative error if the evidence is overwhelming against the defendant.

25. Under Article VI of the United States Constitution the interpretation placed on the Constitution and laws of the United States by the decisions of the Supreme Court of the United States is controlling upon state courts and must be followed; this court, however, has the authority to interpret our state constitutional provisions independent of federal interpretation of corresponding provisions.

26. Whether K.S.A. 21-4624(e) is constitutional raises a question of law over which we exercise an unlimited standard of review.

27. The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear the statute violates the constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt.

28. K.S.A. 21-4624(e) does not violate §§ 9 and 18 of the Kansas Constitution Bill of Rights.

29. The relaxed evidentiary standard for the penalty phase set forth in K.S.A. 21-4624(c) does not violate the constitutional right of due process.

30. The notice provisions of K.S.A. 21-4624(a) and (c) are sufficient to provide the defendant with meaningful notice and an opportunity to respond to the aggravating factors in compliance with the requirements of the Sixth Amendment to the United States Constitution.

31. Under the facts of this case, juror misconduct during the first penalty phase trial did not deny the defendant a verdict of life and, thus, did not preclude subjecting the defendant to the death penalty in a subsequent penalty proceeding for the same offense.

32. In considering a claim that a jury instruction in the penalty phase of a capital trial prevented the jury from giving proper consideration to mitigating evidence, our standard of review is whether there is a reasonable likelihood the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. However, we consider the instructions as a whole and do not isolate any one instruction. Even if erroneous in some way, instructions do not result in reversible error if they properly and fairly state the law as applied to the facts of the case and could not reasonably have misled the jury.

33. Any instruction dealing with the consideration of mitigating circumstances should state (1) they need to be proved only to the satisfaction of the individual juror in the juror's sentencing decision and not beyond a reasonable doubt and (2) mitigating circumstances do not need to be found by all members of the jury in order to be considered in an individual juror's sentencing decision.

34. Under the facts of this case, reviewing the instructions as a whole, there is a substantial probability reasonable jurors could have believed unanimity was required to find mitigating circumstances. Read together, the instructions repeatedly emphasize the need for unanimity as to any aggravating circumstances found to exist. Conversely, the instructions do not inform the jury as to a contrary standard for determining mitigating circumstances, leaving the jury to speculate as to the correct standard. Accordingly, the death sentence is reversed, and this case is remanded to the district court for a new capital sentencing hearing.

35. A capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. The narrowing function can be performed by jury findings at either the sentencing phase of the trial or the guilt phase.

36. The use of the same factor as both a narrowing qualification for the death penalty at the guilt phase and an aggravating factor at the penalty phase is constitutionally permissible.

37. The legislature clearly intended to allow conduct to be used both as a narrowing qualifier for the death penalty at the guilt phase and as an aggravating factor at the penalty phase. Accordingly, PIK Crim. 3d 56.00-C, which provides that "[a]ggravating circumstances are those which increase the guilt or enormity of the crime or add to its injurious consequences, but which are above or beyond the elements of the crime itself," is disapproved.

38. K.S.A. 21-4625(3), which identifies as an aggravating factor that the defendant committed the crime for the defendant's self or another for the purpose of receiving money or any other thing of monetary value, is not limited to cases involving murder for hire or where the defendant kills the victim to obtain an inheritance.

39. K.S.A. 21-4625(3) comports with the constitutional requirement that a death penalty scheme provide a meaningful basis for distinguishing the few cases in which the penalty is imposed from the many cases in which it is not, and channel the sentencer's discretion by clear and objective standards that provide specific and detailed guidance and make the process for imposing a sentence of death rationally reviewable.

40. PIK Crim. 3d 56.00-C(3), instructing the jury to determine whether the defendant "committed the crime for the defendant's self or another for the purpose of receiving money or any other thing of monetary value," could have prejudicial application. To avoid error, the instruction should be revised to specifically designate the crime of capital murder.

41. A prosecutor may argue the defendant is not deserving of the jury's mercy because of the defendant's actions, as long as the prosecutor does not improperly state the law by arguing to the jury that it is prohibited from granting mercy to the defendant because the defendant showed none to the victim.

42. Under the facts of this case, the prosecutor's statement in closing argument that the defendant had "no earthly right to ask for mercy" was not improper.

43. In closing argument, prosecutors should not state their personal opinion as to the credibility of the defendant.

44. Under the facts of this case, the prosecutor's comment labeling the defendant's remorse as "phantom remorse" was an improper statement of personal opinion as to the defendant's credibility.

45. It is improper for a prosecutor to argue certain circumstances should not be considered as mitigating circumstances because they do not excuse or justify the crime.

46. Under the facts of this case, the prosecutor did not argue the defendant's mental illness should not be considered to excuse or justify the crime.

47. Under the United States Constitution, victim impact evidence is admissible in a capital case.

48. K.S.A. 21-4625 permits consideration of victim impact evidence if such evidence is relevant to the question of sentence, i.e., an aggravating or mitigating factor.

49. Under the facts of this case, the prosecutor did not misstate the meaning of an aggravating factor.

50. In future capital proceedings in which the sentencing jury is not the same jury that decided the guilt phase, a special verdict form from the guilt phase should not be admitted into evidence in the penalty phase stating the defendant individually and personally killed or intended to kill the victims.

Per curiam.

Affirmed in part, reversed in part, sentence of death vacated, and case remanded with directions.

Gavin Scott appeals from jury trial convictions for the capital murder of Elizabeth Brittain, premeditated first-degree murder of Douglas Brittain, aggravated burglary, criminal possession of a firearm, and felony theft. Scott has been sentenced to death for capital murder, with consecutive sentences of life imprisonment with a mandatory minimum term of 40 years for premeditated first-degree murder, 51 months for aggravated burglary, 9 months for criminal possession of a firearm, and 7 months for felony theft. We affirm Scott's convictions except for the crime of premeditated murder which is reversed, set aside the imposition of the death penalty, and remand for another sentencing proceeding to determine whether Scott should be sentenced to death.

Scott does not challenge the sufficiency of the evidence necessary to support his convictions. A narrative of the underlying facts and circumstances as reported in State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (1999), was largely replicated in this proceeding. Additional facts will be provided where appropriate under the issues raised on appeal.

THE LEGAL SUFFICIENCY OF COUNT SIX

Initially, Scott was charged in separate counts with the capital murders of Elizabeth Brittain and Douglas Brittain. K.S.A. 21-3439(a)(6) defines capital murder as the "intentional and premeditated killing of more than one person as a part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct."

Before trial, Scott filed a motion to dismiss the charges as multiplicitous, alleging both deaths constitute a single crime of capital murder. At a motion hearing, the State did not concede the charges were multiplicitous but did amend the information to charge Scott with the premeditated first-degree murder of Douglas Brittain in count two and the capital murder of Elizabeth Brittain in count six.

Count six of the amended information states:

"[O]n or about September 13, 1996, A.D., in the County of Sedgwick, and the State of Kansas, one GAVIN D. SCOTT, did then and there unlawfully, intentionally and with premeditation kill Elizabeth G. Brittain, and that the intentional and premeditated killing of Elizabeth G. Brittain, and Douglas G. Brittain, was part of the same act or transaction or two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct."

Scott contends the district court erred in denying his motion to arrest judgment for the capital murder of Elizabeth Brittain because count six does not allege Scott killed Douglas Brittain, an essential element of the crime. We accept Scott's premise that an essential element of the capital murder charge is that the defendant killed Douglas Brittain.

The question of whether an information is sufficient to give the district court jurisdiction is a question of law over which this court has unlimited review. State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004). In analyzing whether an information is sufficient, this court applies one of two tests, depending on when the objection is raised. State v. Hooker, 271 Kan. 52, 61, 21 P.3d 964 (2001); see State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). When a defendant files a motion for arrest of judgment based on a defective information, the pre-Hall standard applies. Hall, 246 Kan. at 764. Under this standard, an information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective, and a conviction based on such an information must be reversed. State v. Sanford, 250 Kan. 592, 600-01, 830 P.2d 14 (1992). However, even under the pre-Hall standard, an information is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or others of the same import so long as the defendant is fully informed of the particular offense charged and the court is able to determine under what statute the charge is founded. State v. Micheaux, 242 Kan. 192, 197, 747 P.2d 784 (1987).

K.S.A. 21-3439(a)(6) requires that the State's charging document allege: (1) The defendant killed more than one person; (2) the killings were intentional and premeditated; and, (3) the killings were part of the same act or transaction, or two or more connected transactions. Count six, the capital murder charge, alleges Douglas Brittain was killed intentionally and with premeditation; however, it does not explicitly allege Scott killed him. As already noted, count two does charge Scott with the intentional, premeditated murder of Douglas Brittain. However, because count two was not expressly incorporated by reference into count six, it does not provide a necessary element of the offense. See State v. Garcia, 243 Kan. 662, 667, 763 P.2d 585 (1988), overruled in part on other grounds State v. Grissom, 251 Kan. 851, 892-93, 840 P.2d 1142 (1992); State v. Jackson, 239 Kan. 463, 465-66, 721 P.2d 232 (1986).

The State contends count six should be held sufficient because it is drawn in the language of K.S.A. 21-3439(a)(6) and follows PIK Crim. 3d 56.00-A(1) and (3)(f). It is true an information drawn in the language of the substantive criminal statute is sufficient to withstand legal challenge. K.S.A. 22-3201(b); State v. Micheaux, 242 Kan. at 197. However, it is immaterial whether count six follows PIK Crim. 3d 56.00-A, as the legal sufficiency of a charging document is not dependent upon instructions of law. Parenthetically, Scott argues the trial court's instruction suffers from the same perceived deficiency as the information--the instruction does not explicitly require the State to prove Scott killed Douglas Brittain. The sufficiency of the instruction to support Scott's conviction for the murder of Douglas Brittain is raised as a separate issue to be later addressed in this opinion.

Although we have stated a pre-Hall standard emphasizes "technical considerations, rather than practical considerations," Hooker, 271 Kan. at 61, we have also held "an information should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied." Micheaux, 242 Kan. at 199. In Micheaux, we quoted from State v. Morris, 124 Kan. 505, 508, 260 Pac. 629 (1927), that "the day [has] passed in this jurisdiction 'when criminals can hope to go unwhipped of justice because of the want of a technical recital in a criminal information which neither misled nor prejudiced them in the preparation or management of their defense.'" 242 Kan. at 197.

Applying the above considerations to count six, we conclude the allegation Scott killed Douglas Brittain was necessarily implied by the language used and a commonsense reading of the charge. Consequently, this omission is distinguishable from omissions we have held constitute reversible error under the pre-Hall standard.

In State v. Howell & Taylor, 226 Kan. 511, 512-14, 601 P.2d 1141 (1979), a conviction for aggravated robbery was reversed because the complaint failed to allege the taking was by force or threat of great bodily harm. In State v. Jackson, 239 Kan. 463, 465-67, 721 P.2d 232 (1986), we reversed convictions for two counts of indecent liberties with a child, one because the complaint failed to allege the victim was under 16 years of age, and one because the complaint failed to allege the child was not married to the accused. In State v. Browning, 245 Kan. 26, Syl. ¶ 4, 774 P.2d 935 (1989), we reversed a conviction for second-degree murder because the complaint failed to allege malice. In Hall, 246 Kan. at 746-47, we reversed a conviction of theft because the complaint failed to allege the defendant intended to permanently deprive the owner of possession of his cattle. In Sanford, 250 Kan. at 599-602, we reversed a conviction for aggravated kidnapping because the amended information failed to allege an intent to inflict bodily injury, terrorize the victim, or facilitate flight or the commission of a crime.

In each of the above cases, reversal was predicated on the omission of an essential element that could not be clearly inferred from the language of the charging document. Such is not the case here; rather, this omission is a technical defect of the type we decried in Morris, 124 Kan. at 508. Although it would have been preferable for the State to have explicitly alleged in count six that Scott killed Douglas Brittain, we conclude the omission is not fatal under a pre-Hall standard and did not prejudice the defendant's ability to prepare a defense or impair his right to a fair trial.

WHETHER COUNT TWO IS MULTIPLICITOUS WITH COUNT SIX

Scott next argues that if the capital murder charge does adequately charge "the intentional and premeditated killing of more than one person" (K.S.A. 21-3439[a][6]), his conviction for the premeditated first-degree murder of Douglas Brittain is multiplicitous.

We have stated "[m]ultiplicity is the charging of a single offense in more than one count of a complaint or information. It creates the potential for multiple punishments for a single offense, violating the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights." State v. Harris, 284 Kan. 560, Syl. ¶ 1, 162 P.3d 28 (2007). We have also held "[a] claim of multiplicity raises a question of law subject to unlimited appellate review." Harris, 284 Kan. 560, Syl. ¶ 3.

Although multiple punishments for the same crime are constitutionally prohibited, this prohibition extends only to prevent a sentencing court from prescribing greater punishments than the legislature intended. State v. Garcia, 272 Kan. 140, 143, 32 P.3d 188 (2001); see Missouri v. Hunter, 459 U.S. 359, 366-69, 74 L.Ed. 2d 535, 103 S.Ct. 673 (1983). The Double Jeopardy Clause is not violated where the legislature specifically authorizes cumulative punishment under two statutes for the same offense. Garcia, 272 Kan. at 143.

The issue is whether the Kansas Legislature intends cumulative punishment for capital murder under K.S.A. 21-3439(a)(6) and first-degree premeditated murder under K.S.A. 21-3401(a). We conclude the answer is "no."

K.S.A. 21-3107(2) (Furse) states:

"Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

"(a) A lesser degree of the same crime;

"(b) an attempt to commit the crime charged;

"(c) an attempt to commit a lesser degree of the crime charged; or

"(d) a crime necessarily proved if the crime charged were proved." (Emphasis added.)

The parties agree that under K.S.A. 21-3107(2)(d) premeditated first-degree murder of Douglas Brittain is a crime necessarily proved once the capital murder of Elizabeth Brittain and Douglas Brittain is proved. However, that does not resolve the issue if there is a clear legislative intent to allow cumulative punishment. See State v. Walker, 283 Kan. 587, 611, 153 P.3d 1257 (2007); see also State v. Schoonover, 281 Kan. 453, 490-91, 133 P.3d 48 (2006) (recognizing it may not always be necessary to apply the same-elements test; there may be circumstances where the legislature's intent is otherwise clear). The State argues the Kansas Legislature has authorized cumulative punishment for these crimes.

In support of its argument, the State correctly notes K.S.A. 21-3439(a)(6) is patterned after a similar provision in the Virginia Death Penalty Act. See Minutes of the Senate Committee on Judiciary, February 24, 1994 (detailing the passage of an amendment to HB 2578 so as to pattern it after the Virginia statute); see also Minutes of the Senate Committee on Judiciary, March 1, 1994 ( reconfirming the purpose of the amendment is to include provisions of Va. Code Ann. §18.2-31[7] [2003] defining capital murder in part as "[t]he willful, deliberate, and premeditated killing of more than one person as a part of the same act or transaction"). Moreover, before our legislature enacted K.S.A. 21-3439(a)(6), the Virginia Supreme Court had interpreted its death penalty statute as allowing simultaneous convictions of capital murder for multiple victims and conviction of first-degree murder for one or more of those multiple victims. See Woodfin v. Commonwealth, 236 Va. 89, 372 S.E.2d 377 (1988), cert. denied 490 U.S. 1009 (1989).

In Woodfin, the defendant was convicted of premeditated first-degree murder and capital murder under § 18.2-31(g) of the Virginia Criminal Code for the killing of "more than one person as a part of the same act or transaction." On appeal, the defendant argued his conviction and punishment for first-degree murder violated double jeopardy. The Virginia Supreme Court disagreed, concluding the Virginia Legislature had clearly indicated its intent to impose multiple punishments. 236 Va. at 96-97. In reaching its conclusion, the court noted it had earlier reviewed the capital murder statutory scheme in Fitzgerald v. Commonwealth, 223 Va. 615, 292 S.E.2d 798 (1982), cert. denied 459 U.S. 1228 (1983), and determined the purpose of the statute was "gradation." Woodfin, 236 Va. at 96.

In urging us to apply similar reasoning to that of the Virginia Supreme Court, the State also asks this court to consider a prosecutor's charging dilemmas and potentially unjust results if a first-degree premeditated murder conviction is held to be multiplicitous with a capital murder conviction under K.S.A. 21-3439(a)(6). The State argues that depending on the election of a prosecutor, a defendant could be charged with multiple counts of first-degree premeditated murder or one count of capital murder. If charged and convicted of multiple counts of first-degree premeditated murder, hard 50 sentences could be imposed for each conviction. Conversely, if charged and convicted of one count of capital murder, only one hard 50 sentence could be imposed.

The above argument no longer appears to have merit for crimes committed after July 1, 2004, as the legislature amended K.S.A. 21-4624 and K.S.A. 21-4635 to provide that a defendant convicted of capital murder who does not receive a sentence of death shall be sentenced to life without the possibility of parole. We do not find a quantitative difference between a life sentence without the possibility of parole and multiple hard 50 sentences.

In interpreting §18.2-31(g) of the Virginia Criminal Code, the Virginia Supreme Court inferred a legislative intent to provide enhancement through gradation. See Fitzgerald, 223 Va. at 636-37. This is an acceptable approach to discerning legislative intent in the absence of plain and unambiguous statutory language to the contrary. It does not appear, however, Virginia has a statute comparable to K.S.A. 21-3107(2)(d) (Furse), which precludes multiple convictions for both a crime charged and "a crime necessarily proved if the crime charged were proved." As discussed in Schoonover, 281 Kan. at 494, that statute is a clear expression of legislative intent that a defendant cannot be convicted of both a crime charged and a lesser included offense arising out of the same conduct.

The State has acknowledged the murder of Douglas Brittain was a crime necessarily proved under the charge of capital murder. Accordingly, under K.S.A. 21-3107(2)(d) (Furse), Scott's convictions were multiplicitous in the absence of clear and unambiguous legislative intent authorizing multiple prosecutions for the same conduct. We are unable to conclude from a plain reading of K.S.A. 21-3439(a)(6) and its legislative history that the legislature intended to override the acknowledged reach of K.S.A. 21-3107(2)(d). In other instances, the legislature has not hesitated to state when K.S.A. 21-3107(2) is not to be applied. See K.S.A. 21-3436 (precluding application of K.S.A. 21-3107[2] to specific felony offenses regardless of whether such felony is distinct from the alleged homicide). Here, there has been no such declared legislative intent. Accordingly, we conclude Scott's conviction for the first-degree premeditated murder of Douglas Brittain must be reversed.

DENIAL OF SCOTT'S MOTION TO SUPPRESS STATEMENTS

A. Scott's Request to Defer Interrogation

Scott next contends the district court erred in finding his statements made during interrogation were admissible. He contends any statements after his request to "finish this in the morning" should have been suppressed. He argues the detectives' continuing interrogation failed to honor his Fifth Amendment invocation of the right to remain silent.

During the interrogation, Scott initially denied any knowledge of the incident. Approximately midway through the interview, he admitted to having been in the Brittains' house. Detectives began pressing him for more details of the crime, suggesting to him he owed it to the Brittains' children to tell them who the killer was and if his accomplice was the shooter. Detective Holtz then attempted to play on an earlier statement by Scott that he loved kids, stating:

"[T]ell us what happened. You gotta help yourself, man. You asked me if I'd help you out, you asked me if this thing was to help you and it is. We had enough to put you at a homicide scene, we need you to tell us what happened cause the other guy's gonna tell us his side. We've gotta have your side of what happened, man. And, and being fuzzy, if you were drunk, if, if it was fuzzy, that's, that's cool, but you're not a cold blooded enough dude that you can wipe out somebody killing somebody, cause you love people and you love those little kids and you love your own family. And if that happened, that's something you can't forget cause you're too, cause . . . ."

At that point, the following disjointed discussion took place, with the participants talking over one another:

"[Scott]: Can we finish this in the morning, man? Please?

"[Det. Oliver]: Why is that,

"[Det. Holtz]: Can't you tell us what's going on man? This, that other dude's,

"[Scott]: Man, I can't shoot,

"[Det. Holtz]: telling us what's happening, okay?

"[Scott]: let's finish this in the morning, man, I. Let's finish this in the morning.

"[Det. Holtz]: This other dude's telling us now, man.

"[Det. Oliver]: It's real simple,"

"[Scott]: Man, I don't, I don't,

"[Det. Oliver]: uh, we're just asking you to pull back,

"[Scott]: remember.

"[Det. Oliver]: in your memory and

"[Scott]: I don't remember it.

"[Det. Holtz]: You remember being there though, you just told us that, man.

"[Scott]: Yes, I can, I can remember being there, I . . . ."

The detectives then continued the questioning, with Scott providing more details.

We have held a suspect's invocation of his or her right to remain silent must be scrupulously honored and cuts off further interrogation elicited by express questioning or its functional equivalent. State v. Carty, 231 Kan. 282, 286, 644 P.2d 407 (1982). However, where a suspect makes a statement which may be ambiguous as to whether he or she is asserting a right to remain silent, the interrogator may, but is not required to, ask questions to clarify or may continue questioning without clarifying. State v. Gonzalez, 282 Kan. 73, 106, 145 P.3d 18 (2006). If the interrogator chooses to continue questioning without seeking clarification, he or she runs the risk of a later ruling the invocation was not ambiguous and any subsequent statements are thus inadmissible.

While Scott characterizes his requests to "finish this in the morning" as unambiguous assertions of his right to remain silent, we are unable to agree. At the Jackson v. Denno hearing on the admissibility of the confession, Detective Holtz testified he believed Scott made the requests because he was getting emotional and was embarrassed about doing so. See Jackson v. Denno, 378 U.S. 368, 12 L.Ed. 2d 908, 84 S.Ct. 1774 (1964). He stated Scott seemed to be in control of the situation and, after overcoming his embarrassment, proceeded to tell the detectives what had happened. This testimony, as well as the ambiguous nature of the requests, led the district court to rule as follows:

"[I]t's not a clear statement, I'm not gonna talk any more. It's just a request, Can't we stop. And that's ambiguous enough, that there's nothing wrong, there was no lengthy period of time used by the detective or detectives actually, in the plural, to force Mr. Scott into making a statement that was not freely and voluntarily made."

In asserting his statement was unambiguous, Scott cites Michigan v. Mosley, 423 U.S. 96, 46 L.Ed. 2d 313, 96 S.Ct. 321 (1975). In Mosley the Supreme Court said:

"Through the [suspect's] exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting." 423 U.S. at 103-04.

Scott argues his request to delay the balance of interrogation was an attempt to control the time at which questioning occurs, and the continuing interrogation was contrary to the holding in Mosley. However, Scott's argument misreads Mosley, which stands for the proposition that a suspect can control the time at which questioning occurs through the use of his or her power to exercise the right to remain silent. That is, the suspect can decide he or she does not want to answer questions at the time and invoke his or her right to remain silent, thus forcing police to question him or her at a different time. However, in doing so the suspect must still unequivocally invoke the right.

Scott cites two other cases for the proposition that a person subject to interrogation has a right to control the time at which questioning occurs: Campaneria v. Reid, 891 F.2d 1014 (2d Cir. 1989); and Dodson v. State, 513 A.2d 761 (Del. 1986). However, neither of these cases is supportive of Scott's argument. In Campaneria, the defendant explicitly told investigators he did not wish to talk and they should come back later. That is, the defendant used the right to remain silent to control the time at which questioning occurred exactly as contemplated by Mosley: He unambiguously invoked the right and additionally told officers to come back at another time. Similarly, in Dodson, the defendant told police he would make a statement in the future, but would not do so at the present time. 513 A.2d at 762-63. In both cases, the defendants unambiguously communicated to police they would not talk at the present time.

In contrast, Scott never stated he did not wish to talk; he simply indicated a desire to finish his statement the next morning. Because Scott's statement was not an unequivocal invocation of his right to remain silent, the detectives were not required to cease questioning. See Davis v. United States, 512 U.S. 452, 459, 129 L.Ed. 2d 362, 114 S.Ct. 2350 (1994); State v. McCorkendale, 267 Kan. 263, 273, 979 P.2d 1239 (1999); see also Martin v. Wainwright, 770 F.2d 918, 923 (11th Cir. 1985) (holding the defendant's statement "[c]an't we wait till tomorrow" was an "equivocal" invocation of the right to remain silent), modified on other grounds 781 F.2d 185 (11th Cir. 1986).

B. Denial of Timely First Appearance

Scott next contends inculpatory statements made during interrogation should be suppressed as the statements resulted from the State's failure to comply with K.S.A. 22-2901. He further contends this failure resulted in deprivation of constitutional protections under the Fourth and Sixth Amendments to the ...


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