Appeal from Sumner District Court; WILLIAM R. MOTT, judge.
SYLLABUS BY THE COURT 1. Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal. 2. "Sexual intercourse" as an element of the crime of rape is defined by K.S.A. 21-3501(1) as "any penetration of the female sex organ by a finger, the male sex organ or any object." The actus reus of the element of sexual intercourse in the rape statute is "penetration of the female sex organ." The methods of penetrating the female sex organ set forth in the statute-by a finger, the male sex organ, and/or an object-merely describe factual circumstances by which a defendant might perpetrate the single actus reus of the crime and do not constitute alternative means. 3. When challenged, the prosecution bears the burden of proving, by a preponderance of the evidence, that a confession was the product of the accused's free and independent will. A court looks at the totality of the circumstances to determine the question. Nonexclusive factors include: (1) the accused's mental condition; (2) the
duration and manner 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; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language. The factors are not to be weighed against one another, with those favorable to a free and voluntary confession offsetting those tending to the contrary. Instead, the situation surrounding the giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. Even after analyzing such dilution, if any, a single factor or a combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances an accused's will was overborne and the confession was not therefore a free and voluntary act. 4. In this case, the coercive effect of the investigators' failure to honor their promise that defendant could terminate an interview at any time compelled defendant's confessions and inculpatory drawing in violation of the Fifth Amendment to the United States Constitution. Thus the district judge's refusal to suppress the confessions and drawing was error. 5. The safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), are triggered only when an accused is subjected to custodial interrogation. In this case, neither the allegedly custodial nature of the defendant's interrogation nor his attempt to invoke his right to remain silent need be analyzed, because the attempt coincided with the shift from his voluntary statements to coerced confessions and an inculpatory drawing.
6. A constitutional error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict. The district judge's failure to suppress in this case did not qualify as harmless error.
The opinion of the court was delivered by: Beier, J.
The opinion of the court was delivered by BEIER, J.
Defendant Jeffery Swindler appeals his conviction for rape. He argues his conviction should be reversed on two grounds: (1) rape is an alternative means crime, and the State failed to present sufficient evidence to support each of the means upon which the district court instructed the jury; and (2) the district court erred in denying Swindler's motion to suppress incriminating statements and a drawing he provided law enforcement officers. Swindler also contends that the journal entry of judgment wrongly reflects that the district court imposed lifetime postrelease rather than lifetime parole and that the district court erred in imposing lifetime parole with electronic monitoring.
We reverse his conviction because his motion to suppress should have been granted, and we remand to the district court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Jeffery Swindler lived with his then girlfriend, M.M., and his two daughters from a previous relationship in a rental home owned by M.M.'s aunt, J.C. J.C.'s then-11-year-old daughter, L.C., M.M.'s cousin, occasionally spent the night at Swindler's residence. One night in late 2008, Swindler, M.M., and L.C. were in bed watching a movie in Swindler and M.M.'s bedroom. According to L.C., she fell asleep during the movie and awoke to find Swindler's finger in her vagina. L.C. told her mother about the incident in May 2009. Based on her allegation, the State charged Swindler with one count of rape under K.S.A. 21-3502(a)(2) (sexual intercourse with a child under 14 years of age).
Before trial, Swindler filed a motion to suppress incriminating statements, written confessions, and a drawing he provided to investigators during an interview at the Kansas Bureau of Investigation's Wichita office. In his memorandum in support of the motion to suppress, Swindler argued that the interview was a custodial interrogation and that his invocation of his right to remain silent was not honored by the officers conducting the interview, KBI Agent Ricky Attebury and Jeff Hawkins of the Sumner County Sherriff's office. Swindler argued that the statements he made after he invoked his right to remain silent were involuntary and inadmissible.
During the hearing on the motion to suppress, Attebury and Hawkins testified about the circumstances surrounding Swindler's interview. Hawkins testified that he had interviewed Swindler as a suspect for the first time at the Southwest Wichita Police Department Substation. At the conclusion of that interview, Hawkins invited Swindler to the KBI's Wichita office to take a polygraph examination.
Six days later, at a time scheduled to accommodate Swindler's work schedule, M.M. drove Swindler and his two daughters to the KBI office. M.M. and the two girls waited in a hallway while Swindler was interviewed, beginning at 8 a.m. Attebury testified that the interview room measured 8' x 8'; Attebury sat in front of the exit during the interview and examination. At the start of the interview, Attebury advised Swindler of his Miranda rights. Attebury also provided Swindler a written form that indicated that the polygraph examination was voluntary and that Swindler could terminate the examination at any time. Attebury testified that the way for Swindler to terminate the interview was to "get up and walk out." Neither Hawkins nor Attebury was armed, and both were dressed in civilian clothes. No other officers were involved with the interview. Attebury testified that there are 10 to 12 plain-clothes agents assigned to the Wichita office but that typically there were fewer than 6 in the office at the time the interview occurred. Swindler was not placed in any restraints during the interview; nor was any property, such as a driver's license or wallet, taken from him.
Shortly after the interview began, Hawkins left the room but was able to watch the interview on a monitor in another room. He testified that he did not watch the interview in its entirety. After Hawkins left the room, Attebury started the interview. At 10:02 a.m., Swindler took an 8-minute unescorted break. After the break, Attebury connected Swindler to the polygraph machine and conducted the examination, which lasted 46 minutes. Following the examination, Attebury informed Swindler that he failed the examination questions about whether he had ever touched L.C. in her "vaginal area." At that point, Attebury's questions became more direct and accusatory.
According to the video recording of the interview in the record on appeal, at about 11:20 a.m., the following exchange between Attebury and Swindler occurred:
"Attebury: Just tell me so we can move on. Ok. With the truth of it.
"Swindler: You want me to say 'Yes. I did it' and . . . .
"Attebury: Well, yeah, the details, yeah . . . .
"Swindler: . . . go on . . . .
"Attebury: Yeah, the details, so I, so I can figure out how to ask the questions . . . .
"Swindler: I can't give you the details. I don't know when I did it. I'm done. I want to go home. I'm done.
"Attebury: Let me, let me go ahead and talk, tell Jeff [Hawkins].
"Swindler: I can't give you the details of when it happened. You know. It's been so long. I can't remember if I touched a little girl's vaginal area. You know. I didn't do it. You know. I don't know what the heck's wrong, but I didn't do it. I know I didn't do it."
The video shows Attebury then left the room and 3 minutes passed before he and Hawkins returned. Attebury testified at the suppression hearing that he suspended Swindler's interview to consult with Hawkins because Attebury thought Swindler was "close to invoking" his right to remain silent. When the two investigators re-entered the interview room, Hawkins questioned Swindler about the incident with L.C. Hawkins' questions were, like Attebury's, accusatory.
"Hawkins: Well what are we ...