Appeal from Shawnee District Court; EVELYN Z. WILSON, judge.
SYLLABUS BY THE COURT 1. An appellate court uses a dual standard of review of a district court's ruling on a motion to suppress, assessing whether the underlying facts are supported by substantial competent evidence but utilizing a de novo review of the ultimate legal conclusion to be drawn from those facts. That standard of review is applicable even where, as in this case, the appellate court is reviewing the same interrogation videotape from which the district court made its determination. 2. The State has the burden to prove, by a preponderance of the evidence, that a defendant's statements to police were voluntarily made, i.e.,that the statements were the product of the defendant's free and independent will. 3. Appellate courts have developed a nonexclusive list of factors to aid in the analysis of whether an accused person's statement is voluntary: (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 voluntariness factors are not to be weighed against one another on a balance scale, with those favorable to a free and voluntary confession offsetting those tending to the contrary. Rather, they are to be considered singly and/or together to determine the ultimate question of whether, under the totality of circumstances, the suspect's will was overborne and the confessionwas not a free and voluntary act. 4. The police tactic of withholding requested relief for an obviously painful untreated gunshot wound over the course of a several-hours-long interrogation is inherently coercive and must play a significant role in the totality-of-the-circumstances test of the voluntariness of the ensuing confession. 5. An extra-judicial confession will not be received into evidence unless it has been freely and voluntarily made, and if the confession has been extorted by fear or induced by hope of profit, benefit, or amelioration, it will be excluded as involuntary. 6. In order to render a confession involuntary as a product of a promise of some benefit to the accused, including leniency, the promise must concern action to be taken by a public official; it must be such that it would likely cause the accused to make a false statement to obtain the benefit of the promise; and it must be made by a person whom the accused reasonably believed had the power or authority to execute it. 7. Even an error that infringes upon a constitutional right may be declared harmless if the benefiting party proves beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record.
The opinion of the court was delivered by: Johnson, J.
The opinion of the court was delivered by JOHNSON, J.
A jury convicted Miguel A. Garcia of felony murder based upon the underlying felony of aggravated robbery, for which he was also convicted. During the robbery, Eliel Fernandez shot and killed the robbery victim, Andres Vega. Garcia's guilt was premised upon his alleged participation in the planning and execution of the robbery. During a police interrogation, Garcia admitted that he participated in the robbery, and the district court denied Garcia's motion to suppress that statement. On appeal, Garcia contends: (1) The district court should have suppressed as involuntary the confession elicited from him during an interrogation; (2) the district court erred in finding that he had opened the door for the State to use the rebuttal testimony of a previously excluded witness; (3) the district court erroneously admitted repetitive and overly gruesome photographs where the manner and cause of death were not in issue; and (4) the cumulative effect of trial errors denied him a fair trial. Finding that Garcia's confession was improperly obtained, we reverse and remand for a new trial.
FACTUAL AND PROCEDURAL OVERVIEW
The incident giving rise to the charges in this case occurred the evening of February 21, 2009, in the parking lot of a bar. The witnesses' descriptions of the events that evening contained inconsistent details, especially as to the persons who participated in the planning of the robbery and as to when and where the decision to rob someone was made. But, generally, we know that Garcia left the home of his girlfriend, Eman Malkawi, and proceeded to the bar in the company of Malkawi, Tina Buck, and Eliel Fernandez. There was some disputed testimony that Garcia participated in a pre-departure discussion about robbing a bar patron.
While the group was at the bar, employees discovered that Fernandez was not in possession of proper identification, and they asked him to leave. Fernandez left with Garcia and Malkawi to go to his residence to retrieve an ID Ostensibly, as he was leaving the bar Fernandez told Buck to find someone for them to rob and to lure that person outside. At his house, Fernandez obtained a weapon which he took along as he, Malkawi, and Garcia drove back to the bar. Upon arriving at the bar parking lot, the three saw Buck with a man, later identified as Vega. Fernandez and Garcia exited the car and ran toward Buck and Vega. As they ran, Fernandez pulled out the gun and yelled: "'Give me your money, bitch!'" Garcia attempted to prevent Fernandez from shooting Vega, but Garcia got shot in the foot for his efforts. Fernandez then shot at Vega, striking him with four rounds and causing his death.
Garcia, Fernandez, and Malkawi left the bar immediately after the shooting. Garcia and Malkawi let Fernandez out of the car to dispose of the gun and then proceeded to Buck's mother's house where Garcia's gunshot wound was cleaned with peroxide and bandaged. Garcia and Malkawi returned to their home without obtaining any further medical assistance for Garcia's gunshot wound.
The next morning, police officers brought Garcia and Malkawi to the station, where they were separately questioned. After being read his Miranda rights, Garcia signed a written waiver of those rights. Garcia's interview was videotaped and lasted a total of 5 hours, although the actual questioning occurred in segments and consumed a total time of something less than 2 hours.
Details of the interrogation will be recited in the discussion of the suppression issue, so a brief summary will suffice here. Initially, Garcia denied that he knew Fernandez or that he was involved in any robbery. He subsequently admitted knowing Fernandez and acknowledged that he was at the scene of the shooting. But for most of the interview he continued to deny any involvement in the robbery. Instead, Garcia's version of events was that he tried to intervene when he saw Vega attempting to abduct Buck into a van, but someone began shooting and wounded Garcia, prompting him to flee the scene. During the interview, Garcia requested medical attention a number of times, but the officers said that he would have to wait for medical treatment or pain medication until the interrogation was complete and Garcia had done "what you know is the right thing to do." The law enforcement officers refused to accept that Garcia was rescuing Buck and repeatedly urged him to admit to participating in the robbery and to be a witness against Fernandez, the shooter, in order to avoid being charged with felony murder. At one point, an officer told Garcia that the district attorney was present outside of the interrogation room. The interrogating officer initially refused Garcia's request to see his girlfriend, Malkawi, saying that Garcia first needed to tell the truth about what happened in his own words. When Garcia would not give that statement, the officer brought Malkawi into the interrogation room to tell Garcia that he would not be booked for murder if he admitted to the robbery. Garcia immediately admitted to participating in the robbery, albeit he provided no details on how the robbery was planned or executed. The interview concluded shortly thereafter, and Garcia was booked into jail on charges of both felony murder and robbery.
Prior to trial, the court conducted a hearing on Garcia's motion to suppress his confession. The State relied entirely on the digital videotape of the interrogation and the transcript of that interview. After reviewing those exhibits, the trial court found that Garcia had been given the Miranda warnings; that Garcia appeared to be in some pain at times, but not "acute pain"; that Garcia did not appear to believe the police officer's promises that he would only be charged with robbery if he confessed to that crime; and that from the totality of the circumstances, Garcia's statement was voluntary.
At trial, Garcia took the witness stand in his own defense and denied any involvement in the planning or execution of the robbery. Garcia claimed that he only confessed to the robbery based upon the promise, related by the police and Malkawi, that he would not be charged with murder if he admitted to the robbery. The jury convicted Garcia of conspiracy to commit robbery and first-degree felony murder.
SUPPRESSION OF CONFESSION
Garcia contends that the district court erred in finding that the totality of the circumstances established that his confession to participating in the robbery was freely and voluntarily given. He emphasizes two circumstances that gainsay voluntariness: (1) The interrogating officers withheld requested medical treatment and pain medication for Garcia's gunshot wound until the interrogation was completed; and (2) the State used promises of leniency to induce the confession. We agree with Garcia; the manner in which his ultimate confession to robbery was obtained was unconstitutionally infirm.
This court has observed that a district court's ruling on a motion to suppress evidence usually presents a mixed question of fact and law, prompting the use of a dual standard of review. The facts underlying the district court's decision on a suppression motion are reviewed under a substantial competent evidence standard, but the ultimate legal conclusion to be drawn from those facts is reviewed de novo. State v. Summers, 293 Kan. 819, 825, 272 P.3d 1 (2012). Substantial competent evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). But appellate courts should refrain from reweighing evidence, assessing witness credibility, or resolving conflicts in the evidence applicable to the district court's ruling on a motion to suppress. See State v. Robinson,293 Kan. 1002, 1017, 270 P.3d 1183 (2012); State v. Cosby,285 Kan. 230, 240, 169 P.3d 1128 (2007); State v. Swanigan,279 Kan. 18, 23, 106 P.3d 39 (2005).
Notwithstanding our well-settled law on the standard of review applicable to a suppression ruling, Garcia asks us to utilize a de novo review, omitting any deference to the district court's factual findings. Garcia contends that the change is justified because the entire police interview at issue here was videotaped and transcribed, allowing this court to see exactly what the trial judge saw. He argues that both this court and the Court of Appeals have exercised de novo review "[u]nder similar circumstances."
A review of the cases cited by Garcia, however, does not reveal the suggested similarity in circumstances. To the contrary, this court has routinely utilized its bifurcated standard of review in suppression cases, even where the statements at issue were videotaped. See Robinson,293 Kan. at 1017; State v. Gonzalez,282 Kan. 73, 100, 145 P.3d 18 (2006); State v. Ackward,281 Kan. 2, 8, 128 P.3d 382 (2006); State v. Combs, 280 Kan. 45, 47, 118 P.3d 1259 (2005); State v. Holmes, 278 Kan. 603, 611-12, 102 P.3d 406 (2004); State v. Jackson,270 Kan. 755, 756-57, 19 P.3d 121 (2001). Moreover, although this court provided no separate analysis of the issue, in State v. Edwards,291 Kan. 532, 545, 243 P.3d 683 (2010), we rejected a defendant's assertion that we should perform a de novo review of a trial court's denial of a motion to suppress.
Granted, we have held that where the facts material to a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law subject to unlimited review. State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008). One can imagine that the videotaping of an interrogation might greatly reduce the number of facts that are disputed; it nevertheless remains the duty of the district court to do the factfinding, not the appellate courts. As our Court of Appeals has aptly observed, "[A]lthough we may consider whether a videotape of a traffic stop supports the district court's factual findings, we do not review the videotape in an effort to invade the district court's province of determining witness credibility or weighing the evidence." State v. Diaz-Ruiz,42 Kan. App. 2d 325, 329, 211 P.3d 836 (2009). See State v. Hess,37 Kan. App. 2d 188, 191, 153 P.3d 557 (2006). That same procedure is appropriate where the videotape involves an interrogation. Accordingly, we decline Garcia's invitation to modify our standard of review.
We begin with a review of some basic principles. The State has the burden to prove, by a preponderance of the evidence, that a defendant's statements were voluntarily made, i.e., that the statements were the product of the defendant's free and independent will. See State v. Gilliland, 294 Kan. 519, 529, 276 P.3d 165 (2012); Edwards, 291 Kan. 532, Syl. ¶ 5; State v. Brown, 286 Kan. 170, 172, 182 P.3d 1205 (2008). The court looks at the totality of the circumstances surrounding the statement and determines whether it was voluntary. Appellate courts have developed a nonexclusive list of factors to aid in the voluntariness analysis:
"(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 ...