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In re P.W.G.

Court of Appeals of Kansas

July 20, 2018

In the Matter of P.W.G., A Minor Child.

          SYLLABUS BY THE COURT 1.

         In reviewing a district court's ruling on a motion to suppress, the appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts is reviewed de novo.

         2. The Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights guarantee the right against self-incrimination, including the right to remain silent and the right to have an attorney present during a custodial interrogation.

         3. A custodial interrogation is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom in any significant way. An investigatory interrogation occurs as a routine part of the fact-finding process before the investigation reaches the accusatory stage.

         4. Factors that a court may consider in analyzing whether the interrogation was custodial in nature include: (1) the place and time of the interrogation; (2) the duration of the interrogation; (3) the number of police officers present; (4) the conduct of the officers and the person subject to the interrogation; (5) the presence or absence of actual physical restraint or its functional equivalent, such as drawn firearms or a stationed guard; (6) whether the person is being questioned as a suspect or a witness; (7) whether the person being questioned was escorted by the police to the interrogation location or arrived under his or her own power; and (8) the result of the interrogation, for instance, whether the person was allowed to leave, was detained further, or was arrested after the interrogation.

         5. In juvenile cases where a child's age was known or objectively apparent to a reasonable officer at the time of questioning, the age of the suspect is also a factor.

         6. K.S.A. 2017 Supp. 38-2333(a) precludes introduction into evidence of statements made by a juvenile under the age of 14 years unless the statements were made following a consultation between the juvenile's parent or attorney as to whether the juvenile will waive the right to an attorney and the right against self-incrimination.

         7. If the State complies with the requirements set forth in K.S.A. 2017 Supp. 38-2333, that compliance is a factor to consider as part of the totality of the circumstances to determine whether the child made an intelligent and knowing waiver of the right to remain silent and the right to have an attorney present during a custodial interrogation. But if the State fails to comply with the requirements set forth in K.S.A. 2017 Supp. 38-2333, even the totality of the circumstances test is not sufficient to ensure the waiver was intelligently and knowingly made.

          Appeal from Butler District Court; Kristin H. Hutchison, judge.

          Amanda J.M. Faber, assistant county attorney, for appellant.

          Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.

          Before Standridge, P.J., Hill and Buser, JJ.

          Standridge, J.

         The State brings this interlocutory appeal following the district court's decision to grant P.W.G.'s motion to suppress. After P.W.G., a juvenile, waived his Miranda rights and made inculpatory statements during a police interrogation, he was charged with two counts of aggravated indecent liberties with a child. Before trial, P.W.G. moved to suppress those statements. The district court granted the motion, finding that P.W.G.'s police interrogation was custodial and that his Miranda waiver was invalid under K.S.A. 2017 Supp. 38-2333(b), which governs the admissibility of confessions from a juvenile who is less than 14 years of age. For the reasons stated below, we affirm the district court's decision to suppress the statements made by P.W.G. during the police interrogation.

         Facts

         On November 15, 2016, Audrey K. reported to the El Dorado Police Department that she had reason to believe her 6-year-old son, E.G., had been fondled by his 13-year-old half-brother, P.W.G., while the two boys had weekend visits with their shared biological father, Pablo G. On November 16, 2016, Sergeant Jeff Murphy interviewed E.G. During this interview, E.G. alleged that he and P.W.G. had touched each other's penises approximately seven or eight times and that P.W.G. had anally penetrated him.

         That same day, Sergeant Murphy contacted Pablo and asked him to bring P.W.G. to the police station for an interview. According to Murphy, he provided "minimal" information to Pablo, explaining that there was an active investigation involving E.G. as the victim of sexual abuse and P.W.G. as the alleged perpetrator of the abuse. Pablo brought P.W.G. to the police station that afternoon for the interview. Pablo later testified that when they arrived for the interview, he knew that the allegations involved P.W.G. but was unsure as to whether P.W.G. was the alleged victim or the alleged perpetrator.

         A video recording of the interview shows Sergeant Murphy leading P.W.G. and Pablo into a room and Murphy closing the door behind them. After the three sat down, Murphy explained that he wanted to talk to P.W.G. about some serious things E.G. said happened on visitation weekends at their father's house. Murphy further explained that because of P.W.G.'s age, the interview had to be conducted with a parent present. Murphy advised P.W.G. that he could be considered a suspect in the case because of the nature of the offenses. At this point, Pablo asked Murphy whether the request to interview P.W.G. was related to Audrey's request to have full custody of their children, which the family court previously had denied. Murphy said no; the interview had to do with allegations made by E.G. against P.W.G., which Murphy went on to say he had no doubt were true. Citing to his extensive experience in "these cases," Murphy said the issue was not "if" the offenses alleged by E.G. happened, but "why" they happened. Murphy then advised that the worst thing P.W.G. could do in a situation like this one was to deny something happened when P.W.G. knew it really had happened. Murphy emphasized that he was very good at his job and would not bring a child to the police station with a parent and confront the child with allegations of wrongdoing if Murphy did not believe the allegations were true.

         At this point, Sergeant Murphy asked Pablo if he would give Murphy permission to speak with P.W.G., noting that Pablo was more than welcome to either stay for the interview or leave. Pablo told Sergeant Murphy that he would stay because he was anxious to learn the details of the unspecified allegations his son E.G. had made against his other son P.W.G. Murphy said he would provide the details of the allegations if, after being advised of his right to remain silent and to have counsel present during the interview, P.W.G. agreed to answer questions. Murphy went on to say that "[i]f we get that knocked out, and you guys are willing to speak with me, then I will put all the details on the table." Taking out a document entitled Miranda Warning, Murphy then read and explained to P.W.G. each of the rights set forth in it. After having P.W.G. acknowledge by initials that Murphy read each of the rights to him, Murphy and Pablo signed as witnesses. Murphy then told P.W.G. that "[i]f you and your dad want to read this and you understand it, then sign and date right there and then I'll sign down there. . . . You might have your dad read that with you. If you guys have questions, ask." The "it" to which Murphy referred was the waiver of rights section of the Miranda Warning form. Murphy did not verbally refer to the section as a waiver of rights, let alone explain what it meant to waive the rights Murphy had just enumerated. After P.W.G. and Pablo silently read and then signed the waiver, Murphy formally asked Pablo for permission to speak to P.W.G. Pablo responded that he was fine with it because he wanted to know what was going on. When asked, P.W.G. told Murphy that he was willing to answer Murphy's questions.

         At the outset of the interview, Sergeant Murphy stated that he was not trying to get P.W.G. in trouble, but serious issues needed to be addressed in order to help P.W.G. Upon questioning from Murphy, P.W.G. confirmed that he visited Pablo's house every other weekend and that he and E.G. shared a bedroom there. Murphy then advised P.W.G. of E.G.'s claims of inappropriate touching between the two brothers. After a period of silence, Murphy told P.W.G. to just be honest. When P.W.G. still did not respond, Murphy repeated the statements he made before advising P.W.G. of his right to remain silent and his right to have an attorney present: Murphy had no reason to think E.G. was being dishonest, Murphy would not bring someone in with a parent unless he believed something had happened, and that being dishonest was the worst thing P.W.G. could do.

         P.W.G. admitted that he and E.G. sometimes slept in the same bed together and that he helped bathe E.G. but denied that any inappropriate touching had occurred in the bedroom or bathroom. P.W.G. said he did not know why E.G. would make such claims.

         Sergeant Murphy explained that if P.W.G. did inappropriately touch E.G., it would not necessarily mean that P.W.G. understood that what he was doing was wrong. Murphy stressed that if inappropriate touching had occurred, P.W.G. should talk to Murphy about it now because it could be an impulse problem that P.W.G. could not control. Murphy generally commented that nobody was accusing P.W.G. of hurting anyone and then specifically commented that no one was accusing P.W.G. of hurting E.G. When P.W.G. did not respond to Murphy's comment, Murphy asked whether P.W.G. was not talking about the inappropriate touching because P.W.G. was afraid. After P.W.G. said no, Pablo interjected, instructing P.W.G. to just tell the truth. Pablo went on to say that if P.W.G. did something wrong, both Murphy and Pablo wanted to know. Pablo again instructed P.W.G. to tell the truth.

         Sergeant Murphy then picked up where Pablo left off, explaining that it is important to tell the truth not just because it would help P.W.G. but also because it would help E.G. Specifically, Murphy said, "This could affect [E.G.] too as far as [E.G.] being able to come to dad's house to visit." Murphy said that E.G.'s allegations were not something he just made up that day. Murphy went on to reiterate that no one was mad at P.W.G. about the situation. In support of this notion, Murphy explained that P.W.G. and E.G. had different moms, so what happened in the relationship between Pablo and E.G.'s mom would not affect what happened in the relationship between Pablo and P.W.G.'s mom. Murphy commented that E.G. wanted to be able to be around their dad, too.

         At that point, which was about 28 minutes into the interrogation, P.W.G. disclosed that E.G. had tried to touch him while they were in bed together, but he told E.G. to stop. P.W.G. continued to deny that he had inappropriately touched E.G. Apparently not believing P.W.G., Sergeant Murphy urged P.W.G. to disclose the truth, just like his dad was telling him. Murphy told P.W.G. that E.G. was not lying because E.G. had no reason to lie. Murphy noted that E.G. was in a bad situation because E.G. did not know when he was going to get to see his dad again. At about 37 minutes into the interrogation, P.W.G. admitted that he had asked E.G. to touch his penis in the bathtub because he wondered how it felt. P.W.G. claimed that he told E.G. to stop right after because he knew it was not right. P.W.G. denied trying to anally penetrate E.G. After P.W.G.'s admission, Murphy left the room for a few minutes. During this time, Pablo told P.W.G. that he had to tell the truth because Pablo was not going to be able to see E.G. until the issue was resolved. Pablo said he felt bad about the situation because P.W.G. and E.G. were both his kids and that he wanted to help both of them. Pablo then reiterated that P.W.G. should be honest because, again, he wanted to help P.W.G. and E.G. because they were both his sons.

         After Sergeant Murphy reentered the room, Pablo continued talking to P.W.G., saying he wanted to know what was going on because E.G. was his son and P.W.G. was his son. Pablo went on to say that everyone makes mistakes and P.W.G. should "be a man" and be honest with Murphy, if he had not been honest so far, so they could get to the bottom of what had happened.

         Sergeant Murphy again expressed his belief that E.G. was telling the truth and that P.W.G. was minimizing his involvement. After Pablo encouraged P.W.G. to tell them what happened, P.W.G. admitted that he and E.G. had touched each other's penises "once or twice" in the bedroom and bathroom. P.W.G. also admitted that he had told E.G. not to tell anyone because they could get in trouble. P.W.G. again denied trying to anally penetrate E.G. Murphy then spoke about the seriousness of P.W.G.'s actions, stating that P.W.G. was old enough to be charged with a crime and that the county attorney would ultimately make that decision. Murphy explained that the crime of aggravated indecent liberties with a child is a felony sex crime that, if committed by an adult, could result in a significant prison sentence and placement on a sex offender registry. Murphy stated that he did not think that P.W.G. was telling the full story and that he hoped P.W.G. would talk to Pablo about what had happened. Murphy ended the interview with P.W.G. after approximately one hour and six minutes. After the interview ended, Murphy spoke to Pablo alone for almost 15 minutes. Pablo expressed his shock and concern for his two sons and stated that he was willing to do whatever he could to help both P.W.G. and E.G. Murphy advised that it would be best if P.W.G. was not around kids for a while and that the county attorney would decide what happened next.

         At some point after Sergeant Murphy interviewed P.W.G., Murphy interviewed Pablo. According to Murphy, the purpose of the interview was to follow up on Pablo's involvement in the case. Murphy clarified that Pablo was involved in the case to the extent that Pablo was the father of both the alleged victim and the alleged perpetrator.

         The State ultimately charged P.W.G. with two counts of aggravated indecent liberties with a child. P.W.G. moved to suppress the statements he made during the interrogation, claiming that his Miranda waiver was invalid under K.S.A. 2017 Supp. 38-2333, which sets forth certain criteria relating to the admissibility of juvenile custodial confessions. In response, the State argued that K.S.A. 2017 Supp. 38-2333 was inapplicable because P.W.G.'s interrogation was not custodial and even if it was custodial, Sergeant Murphy fully complied with the statute by making sure a parent was present when P.W.G. waived his Miranda rights. Following a hearing, the district court granted P.W.G.'s motion to suppress. The State timely filed this interlocutory appeal.

         Standard of Review

         A dual standard is used when reviewing a decision ruling on a motion to suppress a confession. In reviewing a district court's ruling, the appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. Dern, 303 Kan. 384, 392, 362 P.3d 566 (2015).

          Analysis

         The district court held that P.W.G.'s waiver of his right against self-incrimination and his right to counsel were invalid under K.S.A. 2017 Supp. 38-2333(b), which in turn required the court to suppress all statements made by P.W.G. to Sergeant Murphy at the police station. On appeal, the State asserts two points of error in the court's holding. First, the State argues the district court erred by finding that P.W.G. was in custody at the time of the interrogation and, therefore, the State was not required to secure a waiver of rights from P.W.G. Second, the State argues that even if P.W.G. was in custody, the district court erred by finding that P.W.G.'s waiver of rights was invalid under K.S.A. 2017 Supp. 38-2333(b). We address each of the State's arguments in turn.

         Custodial interrogation

         The Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights guarantee the right against self-incrimination, including the right to remain silent and the right to have a lawyer present during a custodial interrogation Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Aguirre, 301 Kan. 950, 954, 349 P.3d 1245 (2015). The Miranda safeguards are triggered only when an accused is (1) in custody and (2) subject to interrogation.

         The State argues it was not required to secure a waiver of rights from P.W.G. because P.W.G. was not in custody at the time of the interrogation. A custodial interrogation is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom in any significant way. This type of interrogation is distinguished from an investigatory interrogation, which occurs as a routine part of the fact-finding process before the investigation reaches the accusatory stage. State v. Warrior, 294 Kan. 484, 496, 277 P.3d 1111 (2012) (establishing factors for determining whether interrogation is investigatory or custodial). The State bears the burden to prove by a preponderance of the evidence that the suspect was not in custody when interrogated. See State v. Lewis, 299 Kan. 828, 836, 326 P.3d 387 (2014).

         An objective, two-part inquiry is used to determine whether an interrogation was custodial. Different standards of review apply to each part of the inquiry. Under the first inquiry, we consider the circumstances surrounding the interrogation by reviewing the district court's factual findings to determine whether they are supported by substantial competent evidence. Under the second inquiry, we determine whether, considering the totality of the circumstances, a reasonable person would have felt free to terminate the interrogation and leave. This second inquiry is an objective one subject to de novo appellate review. Warrior, 294 Kan. at 497.

         Factors that a court may consider in analyzing whether the interrogation was custodial in nature include: (1) the place and time of the interrogation; (2) the duration of the interrogation; (3) the number of police officers present; (4) the conduct of the officers and the person subject to the interrogation; (5) the presence or absence of actual physical restraint or its functional equivalent, such as drawn firearms or a stationed guard; (6) whether the person is being questioned as a suspect or a witness; (7) whether the person being questioned was escorted by the police to the interrogation location or arrived under his or her own power; and (8) the result of the interrogation, for instance, whether the person was allowed to leave, was detained further, or was arrested after the interrogation. Importantly, each case must be examined on its own facts; the listed factors do not necessarily carry equal weight; and the importance of each factor will vary from case to case. Lewis, 299 Kan. at 835. In juvenile cases where a child's age was known or objectively apparent to a reasonable officer at the time of questioning, the age of the suspect is also a factor because "a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go." J.D.B. v. North Carolina, 564 U.S. 261, 272, 277, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011).

         After reviewing these factors and considering the totality of the circumstances, the district court judge found that the interrogation was custodial:

"Like I said, it occurred at the police department. It's hard to imagine that a 13-year-old would have felt comfortable in walking out of the room at any time. The length of the interview I don't think was, you know, overly long; however, the questioning did go for, I believe, at least 45 minutes before [P.W.G.] started giving answers that I think we're really confessional in nature. The fact that the officer gave the Miranda is also an indication of it being custodial.
"Also in this case I believe the testimony from . . . Pablo . . . that neither [P.W.G.] nor his father . . . had any history of criminal contact. This was a new situation for both of them. The questioning itself definitely had a custodial feel to it. So those all are factors ...

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