Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge.
SYLLABUS BY THE COURT 1. The United States Supreme Court's interpretation of the United States Constitution is controlling upon and must be followed by state courts. 2. The Kansas Supreme Court has the authority to construe Kansas constitutional provisions independently of the manner in which federal courts interpret corresponding provisions of the United States Constitution. 3. State courts may interpret state laws in a manner that will impose greater restrictions on police activity than the United States Supreme Court has held to be necessary under federal constitutional standards. 4. Although a state is permitted to expand or broaden the rights of its citizens beyond that which is required by the United States Constitution, a state may not deny, restrict, narrow, or interfere with any of the federally guaranteed constitutional rights. 5. In Kansas, the right to counsel has been codified in K.S.A. 22-4503, which provides that a defendant charged by the State in a complaint, information, or indictment with any felony is entitled to have the assistance of counsel at every stage of the proceedings against such defendant. 6. After a defendant has invoked his or her statutory right to counsel, a police-initiated interrogation of the defendant is a stage of the criminal proceedings at which the defendant is entitled to the assistance of his or her counsel. 7. After the statutory right to counsel has attached, the defendant's uncounseled waiver of that right will not be valid unless it is made in writing and on the record in open court. A Miranda waiver form, signed by the defendant during a police-initiated custodial interrogation, is not a valid waiver of a defendant's entitlement to the assistance of counsel under K.S.A. 22-4503.
The opinion of the court was delivered by: Johnson, J.
The opinion of the court was delivered by JOHNSON, J.
Lester Lawson appeals his convictions and sentences on two counts of aggravated criminal sodomy of a child less than 14 years of age, in violation of K.S.A. 21-3506(a)(1). Lawson raises four issues in this appeal, claiming that (1) his right to counsel under the federal and state constitutions was violated when he was interrogated without his attorney being present and the resulting statements were admitted at trial; (2) the district court's failure to instruct the jury on the essential element of the defendant's age resulted in constitutional and statutory violations that require the imposition of a grid sentence; (3) the district court erroneously imposed a mandatory minimum sentence of 28 years; and (4) he should be parole eligible after 20 years, pursuant to K.S.A. 22-3717(b)(2). Finding that law enforcement officers denied Lawson his statutory right to the assistance of counsel at a critical stage of the proceedings, we reverse and remand for a new trial.
FACTUAL AND PROCEDURAL OVERVIEW
For a period of time during 2006-2007, Lawson and his wife had Brian Kennedy living in their home, together with Kennedy's girlfriend and her two children, K.L. (a girl) and J.L. (a boy). By March 4, 2008, Kennedy, his girlfriend, and her children had moved into their own house, which the Federal Bureau of Investigation (FBI) searched on that date as part of an investigation into Internet child pornography. Child pornography was found on Kennedy's computer, and the children were interviewed at the police station. J.L. said that Kennedy had performed oral and anal sex with him, which eventually led to Kennedy's conviction for that conduct. But during the interviews, after talking with K.L., J.L. eventually made the same allegation against Lawson, i.e.,that Lawson had oral and anal sex with him at Lawson's house.
Lawson was arrested that same day. After being advised of his Miranda rights, Lawson denied having sex with J.L. and offered that K.L. might be making up the accusations because she was jealous of Lawson's positive relationship with J.L. The State charged Lawson with two counts of aggravated criminal sodomy with a child under 14 years old, and the court conducted a first appearance on March 10, 2008. Apparently, there is no transcript of the first appearance hearing, but the judge's notes suggest that a defense attorney, Michael Mogenson, was present on behalf of Lawson. Further, at 10:50 a.m. that day, Lawson's application for court-appointed counsel was filed of record.
The following day, March 11, Officer James Bridges took Lawson from his jail cell and transported him to the Leavenworth Police Department. Lawson would later say that he thought that the officer, dressed in coat and tie, was his court-appointed attorney, and Officer Bridges would assert that he was unaware that Lawson had an attorney. At the police station, Officer Bridges gave Lawson oral and written Miranda warnings and Lawson signed the bottom of the waiver form. Then, the officer conducted a polygraph examination and interview. During the interrogation, Lawson admitted to sexual contact with J.L. on multiple occasions in 2007, including one instance in which J.L. had performed oral sodomy on Lawson.
In June 2008, Lawson's attorney filed a motion requesting a competency determination. Lawson was sent to Larned State Hospital, where doctors found him competent to stand trial. But the examination report noted that Lawson's intellectual functioning was "within the low average range," that he was "an individual with poor judgment capability," and that he showed a low average "ability to abstract information."
Lawson's attorney challenged the admissibility of Lawson's uncounseled statements that were given during the polygraph examination and interview, which the State originally intended to use for rebuttal purposes only. The State's announcement on the morning of trial, May 4, 2009, that it intended to use the statements in its case-in-chief prompted the court to conduct a Jackson v. Denno admissibility hearing before the trial commenced. At that hearing, the State presented Officer Bridges' testimony and the Miranda rights waiver form. The court ruled that Lawson's statements were admissible but that the State could not allow the jury to know that they were obtained in connection with a polygraph examination.
The district court's jury instructions failed to advise the jury that it would have to find that Lawson was over 18 years of age. But Lawson did not object to that omission. The evidence elicited at trial included several references to Lawson's age, including testimony that he was 39 years old on March 4, 2008, the date on which he was taken into custody.
The jury convicted Lawson on both counts of aggravated criminal sodomy with a child under 14 years of age under K.S.A. 21-3506(a)(1). Pursuant to Jessica's Law, under K.S.A. 21-4643(a)(1)(D), each conviction for aggravated criminal sodomy "shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years." The court ordered that the life sentences were to be served concurrently but inexplicably declared that Lawson should not be parole eligible for 28 years. Lawson perfected his appeal of the convictions and sentences.
The parties originally argued the case before this court on April 11, 2012. In June 2012, the matter was set for reargument on October 3, 2012, and the parties were directed to submit supplemental briefs focusing principally on the effect of K.S.A. 22-4503(a) on the suppression issue.
DENIAL OF DEFENDANT'S MOTION TO SUPPRESS POLYGRAPHED STATEMENT
An appellate court reviews the district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court's findings are reviewed to determine whether they are supported by substantial competent evidence. Then the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). When the facts material to a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to ...