Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Sullivan

Supreme Court of Kansas

April 6, 2018

State of Kansas, Appellee,
v.
Henry Sullivan, Appellant.

         

         Review of the judgment of the Court of Appeals in an unpublished opinion filed February 12, 2016.

         SYLLABUS

         1. A defendant has a constitutional right to be present during critical stages of a criminal proceeding; that right emanates from the Sixth Amendment right to confront witnesses and from the right to due process guaranteed under the Fifth and Fourteenth Amendments to the United States Constitution. In Kansas, a defendant in a felony case also possesses a statutory right to be present at every stage of the criminal trial, except as otherwise provided by law.

         2. The rules governing the Confrontation Clause of the Sixth Amendment to the United States Constitution established in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), are not applicable to a statement made by the defendant because the point of requiring the availability of the declarant for cross-examination is to provide the defendant an opportunity to cast doubt on the statement's value for truth.

         3. When a defendant is present in open court at the time an exhibit that consists of video recordings of defendant's interrogation by law enforcement officers is offered and admitted into evidence; the defense has stated in open court that it had no objection to the content of the exhibit; and the defense counsel declared that it intended to use the exhibit's content to cross-examine the interrogating detectives, the district court's providing the exhibit to the jury during deliberations without first publishing the entire recording in open court does not violate the defendant's right to be present at all critical stages of the trial.

         4. When the foundation for an exhibit that consists of video recordings of defendant's interrogation by law enforcement officers is established in open court; the exhibit is offered and admitted in open court; the defense advises in open court that it has no objection to the content of the exhibit; a portion of the audio content of the exhibit is played to the jury in open court; the defense does not attempt to supplement the publication of the video recording in open court; and the defense is provided the opportunity to use any or all of the exhibit's content to cross-examine the State's witnesses in open court, the defendant's right to a public trial has not been violated when the exhibit is provided to the jury to view during deliberations without first publishing the entire recording in open court.

         5. The use of a person's prior convictions to enhance his or her sentence in the current case, without having proved those convictions to a jury beyond a reasonable doubt, does not violate the Sixth Amendment to the United States Constitution.

          Appeal from Wyandotte District Court; Wesley K. Griffin, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

          Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Ethan Zipf-Sigler, assistant district attorney, argued the cause, and Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          OPINION

          JOHNSON, J.

         A jury convicted Henry Sullivan of multiple counts of rape and aggravated criminal sodomy, together with one count of aggravated robbery, arising out of separate attacks on three different women, occurring between 2008 and 2010. During the consolidated trial, the State offered, and the district court admitted, DVDs containing approximately six hours of law enforcement's video recording of Sullivan in the interrogation room. The DVDs were not played for the jury in open court, but the jury was permitted to take the exhibits into the jury room during deliberations. Sullivan appealed, claiming that the district court's handling of law enforcement's video recording violated his constitutional and statutory rights to be present at all critical stages of his trial and violated his constitutional right to a public trial with an impartial judge. He also claimed that the district court unconstitutionally considered his prior convictions to enhance his sentence. The Court of Appeals affirmed his convictions and sentence, finding no reversible constitutional or statutory violations. State v. Sullivan, No. 112, 638, 2016 WL 563000 (Kan. App. 2016) (unpublished opinion). We granted Sullivan's petition for review. We reach the same result as the Court of Appeals.

         Factual and Procedural Overview

         Given the procedural nature of Sullivan's appellate claims, we do not need to recite a detailed description of his criminal acts. Generally, he accosted T.H. as she was walking in the early morning hours of June 13, 2008, and forced her behind a building, where he forcibly sodomized, raped, and robbed her. On December 22, 2009, J.D. was walking in Kansas City on a cold and slick afternoon, when Sullivan offered her a ride home in his automobile. Instead of taking her home, Sullivan parked at a secluded bridge, where he sodomized J.D. in various ways and raped her. The following year, on December 10, 2010, S.H. was walking in the early morning hours, when Sullivan grabbed her and pulled her behind a store. There, he forced her to orally sodomize him before he raped her.

         Sexual assault kits were performed on all three women that produced DNA profiles of an unknown male. The data was entered into CODIS, a combined DNA indexing system. A match was not discovered until October 2011, when the DNA from S.H.'s sexual assault kit was linked to Sullivan. Detective Michael Lucas was assigned to investigate, and he obtained an oral swab from Sullivan for DNA comparison.

         In January 2012, two more CODIS hits pointed to Sullivan as a suspect in the T.H. and J.D. sexual assaults. Both of those victims picked Sullivan out of a photographic lineup as their assailant. DNA from Sullivan's oral swab matched the DNA found on the victims in all three cases.

         Sullivan was arrested in the late morning of February 2, 2012, and transported to the Kansas City detective bureau, where he was left in Detective Lucas' custody. Detective Danon Vaughn assisted Detective Lucas in interviewing Sullivan. Sullivan signed an advice of rights form at 1:23 p.m. At various times, the detectives employed both audio and video recordings. Sullivan's first audio recorded statement started at 2:37 p.m.

         After the audio recording began, Captain William Howard texted Detective Vaughn and instructed him to begin a video recording, which appears to have begun roughly 12 minutes into the audio recording. The video recording then runs continuously for several hours, including the periods during which Sullivan was alone in the interrogation room, ending when a uniformed officer pats down Sullivan and handcuffs him.

         During the first audio recording, Sullivan admitted to sexual contact with each of the three victims but claimed the contact was consensual. During a second audio-recorded statement, commenced after Sullivan had been further interrogated, Sullivan's version of events was more incriminating, especially with respect to the incidents involving T.H. and S.H. Then, toward the end of the second audio-recorded statement, Sullivan indicated that he needed help because he did not always make the best decisions.

         At trial, the State admitted the two audio-recorded statements into evidence and played them for the jury in open court. Sullivan requested to be excused from the courtroom during the playing of those statements. Upon obtaining a waiver of the right to be present during all critical stages of the proceedings from both Sullivan and his attorney, the trial court granted the request; Sullivan was not present in open court when the audio-recorded statements were played for the jury.

         While questioning one of the detectives, the prosecutor proffered the DVDs containing the entire video recording of Sullivan's time in the interrogation room from and after Captain Howard's directive to start the video. The following colloquy occurred:

"MS. LIDTKE [THE PROSECUTOR]: All right. Judge, I'd move to admit Exhibit 40.
"MS. MCBRATNEY [DEFENSE COUNSEL]: Can we approach, Judge?
"THE COURT: Yes. (Thereupon, the following proceedings were had at the bench by court and counsel out of the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.