Opinion
No. 104,433.
2012-07-20
STATE of Kansas, Appellee, v. Christopher WELLS, Appellant.
Appeal from Reno District Court; Richard J. Rome, Judge. Rick Kittel, of Kansas Appellate Defenders Office, for appellant. Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Richard J. Rome, Judge.
Rick Kittel, of Kansas Appellate Defenders Office, for appellant. Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Christopher Wells of driving under the influence of alcohol (DUI), driving while suspended, and failure to properly signal a turn. Prior to trial, Wells pled guilty to refusing a preliminary breath test (PBT) which arose out the same occurrence. Wells appeals his convictions and sentencing, raising five separate grounds. We affirm the convictions. We also affirm the sentences in part, but we vacate the $2,500 fine imposed pursuant to K.S.A.2008 Supp. 8–1567(g)(1) and remand for the district court to consider Wells' financial resources and the burden the fine would impose upon him.
Factual and Procedural Background
On May 15, 2009, Officer Matthew Brooks was operating a DUI sobriety check lane. At about 11:50 p.m., he observed a Ford Explorer fail to signal within 100 feet of completing a left turn, which is a traffic infraction. Officer Brooks stopped the vehicle which was driven by Wells.
Officer Brooks observed that Wells had “very blood shot eyes and very slurred speech.” The officer also noticed that Wells' movements were “lethargic,” and it took Wells “quite some time” to locate his license, proof of insurance, and registration. Wells told Officer Brooks that “he was coming from the bar.” When the officer asked Wells how much he had to drink that evening, Wells responded, “[P]robably enough to be over the legal limit.” Shortly thereafter, Officer Brooks learned that Wells' driver's license had been suspended.
Wells was asked to perform some field sobriety tests. While walking from his vehicle, Wells moved “very slowly” and he leaned against the vehicle at one point. According to the officer, he smelled an “[o]dor of alcoholic beverage” coming from Wells while conversing with him outside of the vehicle.
Officer Brooks had Wells perform the walk-and-turn test. Wells used his arms for balance, made an improper turn, and missed heel-to-toe contact on one step. These three clues of intoxication constituted a failure of the test. Officer Brooks also had Wells perform the one-leg-stand test. According to the officer, Wells failed this test because he demonstrated two of four possible clues of intoxication by using his arms for balance and making contact with the ground. Finally, Officer Brooks asked Wells to submit to a PBT, but Wells declined the test.
Based on his observations and testing, Officer Brooks opined that Wells was under the influence of alcohol to such a degree that he was rendered incapable of safely driving a vehicle. As a result, Officer Brooks arrested Wells for suspicion of DUI.
Officer Brooks did not advise Wells of his Miranda rights upon his arrest or during the trip to the law enforcement center because he did not plan to ask Wells any incriminating questions. During transport, Wells made incriminating statements. For example, Wells stated, “I know I have been drinking. I know in a court of law I know I am over the legal limit.”
At the law enforcement center, Officer Brooks read Wells the Kansas Implied Consent Advisories. According to the officer, although Wells stated that he understood the content of the advisories, he refused to submit to an evidentiary breath test to determine his blood alcohol concentration.
Wells was charged with operating or attempting to operate a vehicle while under the influence of alcohol (K.S.A.2008 Supp. 8–1567[a][3] ); driving while suspended, (K.S.A.2008 Supp. 8–262); PBT refusal, (K.S.A.2008 Supp. 8–1012); and failure to properly signal a turn, (K.S.A.8–1548[b] ). Wells pled guilty to refusing the PBT prior to trial.
During the trial, Wayne Lafayette, a friend of Wells, testified that on the night of the arrest he and Wells started drinking beer at a bar about 6:30 p.m. According to Lafayette, Wells left the bar about 11:30 p.m. Lafayette testified that, in his opinion, Wells did not appear to be under the influence of alcohol at the time he left the bar. Lafayette acknowledged, however, that he did tell Wells “to be careful on the way home.”
The jury convicted Wells of DUI, driving while suspended, and failure to properly signal a turn. He was sentenced to 12 months' incarceration on the DUI conviction. Because this was Wells' fourth DUI offense, the district court also fined him $2,500. On the charge of driving while suspended, the district court imposed a concurrent sentence of 6 months' incarceration and a $200 fine. The district court fined Wells $25 for failure to properly signal a turn, and $100 for his refusal to take a PBT.
Wells timely appealed his convictions and sentences.
Sufficiency of the Evidence of Driving Under the Influence
Wells contends the State violated his right to a unanimous jury verdict because it failed to present sufficient evidence to support each of the alternative means for a DUI conviction under K.S.A.2008 Supp. 8–1567(a)(3).
The State's complaint alleged that Wells “unlawfully, feloniously, and willfully ... operate[d] or attempt[ed] to operate a vehicle ... while under the influence of alcohol.” (Emphasis added.) See K.S.A.2008 Supp. 8–1567(a)(3). In short, the State charged Wells with alternative means of committing DUI. See State v. Stevens, 285 Kan. 307, 314, 172 P.3d 570 (2007).
The district court, however, instructed the jury only as to one means of committing DUI:
“In Count I, Christopher Wells is charged with the crime of operating a vehicle while under the influence of alcohol. Christopher Wells pleads not guilty.
To establish this charge, each of the following claims must be proved:
1. That Christopher Wells drove a vehicle;
2. That Christopher Wells, while driving, was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle; and
3. That this act occurred on or about the 15th day of May, 2009, in Reno County, Kansas.”
On appeal, Wells acknowledges that the district court only instructed the jury on one of the alternatives—the “operate a vehicle” means, not the “attempting to operate the vehicle” means. Moreover, Wells concedes that the State proved the one means presented to the jury for its verdict. Wells states the State “established evidence that [he] operated his vehicle. The State presented evidence that Mr. Wells drove his vehicle, turned, and was subsequently stopped by Officer Brooks.”
Wells contends, however, that an alternative means issue is still present even though the jury was limited to a single means because the State charged him with “alternative means of committing a DUI offense” and “where a single offense may be committed in more than one way, there must be ‘jury unanimity as to guilt for the single crime charged.’ “ We disagree.
An alternative means issue arises if the charged offense may be committed in more than one way and “the prosecution declines to elect one or the other, resulting in a jury instruction on both.” State v. Brooks, 46 Kan.App.2d 601, 608, 265 P.3d 1175 (2011), rev. granted 294 Kan. –––– (June 13, 2012) (pending). In such a circumstance, the evidence must be sufficient to support each alternative means of commission presented to the jury to ensure unanimity “ ‘at the level of factual generality that matters most of all: guilt v. innocence.’ [Citation omitted.]” State v. Wright, 290 Kan. 194, 205, 224 P.3d 1159(2010).
In the present case, after the State charged Wells in the alternative, the jury was only presented with one means to consider if Wells committed DUI. Wells concedes there was sufficient evidence to support this one means, and there can be no question that Wells, therefore, was afforded his statutory right to a unanimous jury verdict. See Wright, 290 Kan. at 201, 224 P.3d 1159. In fact, because the jury was not given the opportunity to consider whether Wells attempted to operate a vehicle, there was no possibility that the verdict was not unanimous with regard to the only means instructed on—whether Wells operated the vehicle.
Finally, a panel of this court was recently presented with this very issue in State v. Charles, No. 102,981, unpublished opinion filed March 25, 2011, slip op. at 10–12, rev. granted 292 Kan. 966 (2011) (pending), and arrived at the same legal conclusion based upon analogous facts, which we consider persuasive here.
Accordingly, Wells' argument is without merit because the jury could only convict based upon the “operate” alternative—the means for which Wells acknowledges the evidence was sufficient—and, as such, the jury instructions ensured a unanimous jury verdict as to guilt for the single means instructed on—operating a vehicle while under the influence of alcohol.
Prosecutorial Misconduct
Wells contends the prosecutor committed misconduct on three occasions during closing arguments.
Appellate review of an allegation of prosecutorial misconduct involving improper closing arguments to the jury requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Tahah, 293 Kan. 267, 276, 262 P.3d 1045 (2011).
The first step of the analysis requires making a determination whether prosecutorial misconduct occurred. Tahah, 293 Kan. at 276, 262 P.3d 1045.
Wells contends that two of the three statements made by the prosecutor constituted an improper attempt to shift the burden of proof to the defense. The first statement Wells challenges occurred during the prosecutor's closing argument:
“[PROSECUTOR]: ... The defendant was given the opportunity to take [the] Intoxilyzer breath test. That is the machine [which would be] able to show at least we know he had [a] quantity of alcohol in him. He admitted to drinking above the legal limit. How much above the level limit is what we do not know, and of course, it's very fundamental when the piece of evidence is not available before you, ... that we ... would present before you—... that, you do not have. The defendant took away from you and that is the
“[DEFENSE COUNSEL]: Objection, Judge. That is shifting the burden.
“[PROSECUTOR]: Because the defendant refused to take that breath test how
“THE COURT: I'm going to—I'm going to—you can't shift the burden to the defense.
“[PROSECUTOR]: We are talking about the piece of evidence that we don't have and that is the law, result of, the jury can use refusal that—use refusal of the breath test.
“THE COURT: They can use the instruction and common sense to—to determine, you know, that whether or not the defendant was under the influence. I'm going to let you go there.
“[PROSECUTOR]: Thank you. Thank you very much, Judge. And that is the issue. The officer gave him the opportunity. He refused.” (Emphasis added.)
The second statement which Wells also challenges as improper burden shifting occurred during the rebuttal closing argument:
“[PROSECUTOR]: ... In this case Officer Brooks was able to make contact with [an] impaired driver. He has one shot. He had to get it right. The only instruments that he could use were field sobriety tests, the clues in his field sobriety tests, things he saw during his contact with the defendant, odor of alcohol, slurred speech, having problem[s] getting out his document[s]. Those are the only instruments he had to make his decision and he has to get it right. Then there is the issue of the Intoxilyzer machine being the fluff. What exactly was the purpose that the State of Kansas provide[s the] Law Enforcement Center with a[n] Intoxilyzer machine. If it's just a fluff. Is it just mainly to decorate the table? It is merely to test impaired driver[s]. To give them the opportunity to show how much below
“[DEFENSE COUNSEL]: Objection. That is shifting the burden again.
“[PROSECUTOR]: Not shifting the burden. I'm talking about [the] Intoxilyzer machine.
“THE COURT: Continue on.
“[PROSECUTOR]: Thank you.
“THE COURT: Stay away from that subject.
“[PROSECUTOR]: Thank you, Judge. Is the Intoxilyzer machine a fluff? That's one very key issue.” (Emphasis added.)
As a general rule, “Kansas courts deem it ‘improper for the prosecutor to attempt to shift the burden of proof to the defendant or to misstate the legal standard of the burden of proof.’ [Citations omitted.]” State v. Duong, 292 Kan. 824, 832, 257 P.3d 309 (2011).
This case is not typical, however, because K.S.A.2008 Supp. 8–1001(n) specifically provides that an individual's refusal to submit to drug or alcohol testing “shall be admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both.” In effect, an individual's failure to submit to testing is a failure to produce evidence which—unlike other criminal jurisprudence—may be considered by the jury.
Our court in State v. Wahweotten, 36 Kan.App.2d 568, 584–85, 143 P.3d 58 (2006), rev. denied 283 Kan. 933 (2007), held that a prosecutor may reference a defendant's refusal to submit to a breath test during closing arguments, when the jury has been properly instructed on the State's burden of proof, because such statements are within the wide latitude allowed a prosecutor in discussing the evidence. Specifically, the panel was asked to analyze the appropriateness of the following argument:
“The refusal to submit to the test is evidence of the defendant's intoxication, cause why else wouldn't he take the test? What other reason could there be? Why would you refuse to be tested? Why would the defendant refuse to be tested if he's not intoxicated, if he has nothing to hide?' “ 36 Kan.App.2d at 584, 143 P.3d 58.
Our court held this statement did not constitute prosecutorial misconduct because “[h]ere, the prosecutor was discussing Wahweotten's refusal to submit to the breath test, which is clearly allowed [by statute].” 36 Kan.App.2d at 584, 143 P.3d 58.
Wells distinguishes Wahweotten from the present case, however, asserting the prosecutor exceeded his wide latitude because he did not merely use the breath test refusal as evidence of intoxication; instead, the prosecutor attempted to insinuate that it was Wells' burden to establish his innocence “by submitting to, and passing an Intoxilyzer test.” The State does not specifically address whether the statements were improper; instead, the State focuses upon whether these statements denied Wells a fairtrial.
With regard to the two challenged statements, “The defendant took [evidence of his blood-alcohol concentration] away from you ....“; and (2) “It is merely to test impaired driver[s]. To give them the opportunity to show how much below—,” we first observe that neither remark expressly encouraged the jury to shift the burden of proof to the defendant. In fact, Wells implicitly acknowledges this when he complains of the prosecutor's use of inference, insinuation, and hints regarding a shifting of the burden of proof.
The first comment is of more concern than the second. It suggests not simply that a test refusal is an indication of a consciousness of guilt but that the defendant purposely deprived the jury of evidence at trial. While this comment does not explicitly relate to a shifting of the burden of proof, it suggests that Wells' refusal was intended to frustrate the jury's consideration of evidence. This inference was without a basis in evidence and improper.
The second remark, however, was within the wide latitude afforded the prosecutor because it did not relate to a shifting of the defendant's burden of proof or intimate that Wells intentionally was depriving the jury of evidence. Moreover, submission to the evidentiary breath test does afford, in part, an individual the opportunity (although not the burden or responsibility) to objectively show that he or she is not intoxicated.
With regard to the first comment, we next consider whether the statement prejudiced the jury against the defendant and denied the defendant a fair trial. Tahah, 293 Kan. at 276, 262 P.3d 1045. First, the district court in response to defense counsel's objection, admonished the prosecutor in front of the jury that “you can't shift the burden to the defense.” Although the district court did not specifically sustain the objection, its admonition to the prosecutor also informed the jury that the burden of proof remained with the State. See State v. Angelo, 287 Kan. 262, 285, 197 P.3d 337 (2008).
Second, at the conclusion of the trial, the district court properly instructed the jury on the burden of proof: “The State has the burden of proving Christopher Wells is guilty. Christopher Wells is not required to prove he is not guilty.” This instruction was a proper statement of the law and should have averted any confusion regarding the burden of proof. See State v. Stone, 291 Kan. 13, 18–19, 237 P.3d 1229 (2010). This is because a jury is presumed to follow the court's instructions. State v. Reid, 286 Kan. 494, Syl. ¶ 18, 186 P.3d 713 (2008).
Third, we are not persuaded that the prosecutor's brief comment, which was interrupted by defense counsel's objection, was gross and flagrant or showed any ill will. See State v. McCaslin, 291 Kan. 697, 715–16, 245 P.3d 1030 (2011). This also was not the kind of argument that is of a direct and overwhelming nature to mislead the jury in evaluating the evidence admitted at trial. See 291 Kan. at 715–16, 245 P.3d 1030. While the prosecutor's first challenged comment was improper, we find no prejudice or deprivation of Well's right to a fair trial.
Wells also complains about a third comment made by the State during closing argument, which he contends constituted an improper attempt to inflame the passions and prejudices of the jury:
“[PROSECUTOR]: Jury Instruction Number Three asks you to use your common sense, your knowledge and experience in regards to any matter in which you have to make a decision. Uh, we—we urge you to do that and at the end of the day if you apply this, we are very sure that you will be able to reach just one verdict. That May 15, 2009, the defendant, Christopher Wells, put his life and the lives of others on the road
“[DEFENSE COUNSEL]: Judge, I'm going to object to that. That is not proper. That's meant to inflame the jury. That is not proper.
“[PROSECUTOR]: What is not proper?
“[DEFENSE COUNSEL]: Mr. Oyedemi [the prosecutor] knows that.
“[PROSECUTOR]: What is improper about that?
“THE COURT: Kelly [defense counsel], what you said
“[DEFENSE COUNSEL]: Not inflame the jury by talking about [Wells] putting his life and the lives of other people on the road. That is not proper. It is inflammatory and I ask him to move on from that.
“THE COURT: All right. Let you—ask you to go ahead. Move on.
“[PROSECUTOR]: Okay. Thank you, Your honor.” (Emphasis added.)
It is a prosecutor's duty to “ ‘ensure only competent evidence is submitted to the jury and avoid arguments that could prejudice the jurors' minds, preventing them from deciding the case on the evidence.’ [Citations omitted.]” Duong, 292 Kan. at 834, 257 P.3d 309. Thus, statements made by a prosecutor during closing arguments that are “ ‘intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law’ “ are improper. 292 Kan. at 833–34, 257 P.3d 309 (quoting State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 [2004] ).
Wells contends the prosecutor exceeded his wide latitude in discussing the evidence when he stated, “That May 15, 2009, the defendant, Christopher Wells, put his life and the lives of others on the road [in danger],” because this statement “evokes the terrible images of innocent motorists killed each day at the hands of intoxicated motorists.” Wells asserts this image may have encouraged the jury to enter a guilty verdict based upon contempt toward and fear of intoxicated drivers rather than the evidence and controlling law. Similar to the challenged statements discussed earlier, the State does not specifically address whether this statement was improper; instead, it focuses on whether this statement denied Wells a fair trial.
Three unpublished opinions from our court involving DUI convictions are instructive on this issue, as they all relate to the propriety of similar prosecutorial arguments.
In State v. Perez, No. 98,238, 2009 WL 1530728, unpublished opinion filed May 29, 2009, rev. denied 290 Kan. 1101 (2010), a jury convicted Perez of, among other offenses, DUI. On appeal, Perez alleged that the prosecutor committed reversible misconduct, by appealing to the passions and prejudices of the jury, when he made the following statement to the jury during closing arguments:
“ ‘If a bouncing ball comes out between some parked cars, in order to be able to safely drive that vehicle, you've got to have a good reaction time to stop and not hit the kid who comes out after the ball. Thank God no kid comes out after any balls here.’ (Emphasis added.)” Perez, slip op. at 4.
Our court found the statement was “a hypothetical, policy-oriented argument to the jury to convict the defendant of DUI for the safety of the children of the jurors or the community at large.” Perez, slip op. at 6. The court explained, that “[s]uch ‘do it for the children’ arguments are improper.” Perez, slip op. at 6 (citing In re Care & Treatment of Ward, 35 Kan.App.2d 356, 372–79, 131 P.3d 540,rev. denied 282 Kan. 789 [2006] ). However, although the panel deemed the comment improper, it held that the prosecutor did not commit reversible misconduct because the statement did not constitute plain error and did not unduly prejudice the defendant. Perez, slip op. at 7–8. The panel explained:
“Although the challenged statement was improper, such statement was an isolated comment made during the prosecutor's otherwise permissible discussion of whether the defendant was in a condition to ‘safely operate a motor vehicle.’ There was no larger pattern into which the challenged comment fit to create a greater impact on the jury, as in Ward, where this court concluded the State's theme for the entire closing argument had been the jury should find the defendant to be a sexual predator in order to ensure the safety of their children and the community's children. [Citation omitted.]” Perez, slip op. at 7.
In State v. Tafoya, No. 100,784, 2010 WL 5185473, unpublished opinion filed December 17, 2010, rev. denied 293 Kan. –––– (December 16, 2011), Tafoya was convicted of DUI. On appeal, he contended the prosecutor made closing arguments to inflame the passions and prejudices of the jury:
“ ‘This is a primarily residential area, we heard testimony about a lot of small houses. Well, I've got a theory. One of the leading cases [ sic ] of pregnancy is houses, because every time I see houses, I see kids. And if you got kids, you got families, if you got families, you got people going to work at different shifts.
....
“ ‘... [Fifty] miles an hour past your house in a residential neighborhood. Ask yourself, does that make you mad? Why? Because it is not safe. Now, you got a driver with alcohol in his system, going 50 miles an hour through a residential neighborhood. He cannot be safe, he cannot will himself into sobriety, he cannot want sobriety at that moment. He is not safe, he cannot be safe.’ “ Tafoya, slip op. at 6–7.
Our court compared these comments to those made in Perez and although it found that the comments were “not as egregious as” those made in Perez, it still deemed them improper, although not reversible error. See Tafoya, slip op. at 7–8. The panel explained that, similar to Perez, the prosecutor's comments were “isolated comments made during an otherwise permissible discussion of the defendant's condition to safely operate a motor vehicle.” Tafoya, slip op. at 8.
Finally, in State v. Sullivan, No. 104,343, unpublished opinion filed August 26, 2011, rev. denied 293 Kan. –––– (February 3, 2012), the defendant was convicted of DUI. Similarly to Perez and Tafoya, Sullivan contended the prosecutor committed reversible misconduct during closing arguments, by improperly attempting to inflame the passions and prejudices of the jury, when she stated. “ ‘Sullivan was driving when he had too much to drink and was impaired. He was a danger on the road, being behind the wheel that night.’ “ (Emphasis added.) Sullivan, slip op. at 8.
Unlike Perez and Tafoya, our court held this comment was not improper because it was “simply a conclusion based on the evidence.” Sullivan, slip op. at 9. The court explained: “If the jury believed Trooper Kufahl, Sullivan was impaired while driving his vehicle; [thus,] it is not a comment outside the wide latitude allowed in discussing the evidence to say that he would have been a danger on the road.” Sullivan, slip op. at 9.
The challenged statement in this case appears to be more analogous to the statement in Sullivan than the comments in Perez and Tafoya. Similar to Sullivan, the prosecutor was drawing an inference based on the evidence, i.e., that Wells was a danger to himself and others on the road because he was admittedly impaired with alcohol. Moreover, unlike Perez and Tafoya, the prosecutor's statement was not in effect an appeal to the jurors to ensure the safety of their children and the community's children by convicting Wells. We are persuaded this comment was not error.
Assuming this comment was error, however, we are convinced there was no prejudice or that Wells was denied a fair trial. See Tahah, 293 Kan. at 276, 262 P.3d 1045. First, as part of his objection, defense counsel said to the district court, “I ask him to move on from that.” Once again, the district court did not rule on the objection but obviously agreed with defense counsel when he instructed the prosecutor in the presence of the jury to “[m]ove on .”
Second, the prosecutor did not belabor the point. This important because in the determination whether gross or flagrant conduct has occurred, “appellate courts should look to whether the prosecutor ‘repeated or emphasized the conduct.’ [Citations omitted.]” State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011). Prosecutorial ill will is also not evident. See McCaslin, 291 Kan. at 715–16, 245 P.3d 1030.
Finally, in this case, “ ‘ “the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of jurors.” ‘ “ See McCaslin, 291 Kan. at 715, 245 P.3d 1030. Significantly, Wells made several admissions of guilt both prior to and following his arrest. Additionally, if the jury believed Officer Brooks, Wells had “very blood shot eyes and very slurred speech,” his movements were “lethargic,” he had difficulty locating his documentation, he had an odor of alcohol emanating from his person, he failed field sobriety tests, and he refused to submit to a breath test. Assuming there was error, we conclude that “there is no reasonable possibility the error affected the verdict.” See Inkelaar, 293 Kan. at 431, 264 P.3d 81.
For all the reasons stated, Wells has not shown reversible error in the three comments made by the prosecutor in closing arguments.
Postarrest Incriminating Statements
Wells contends the incriminating statements he made to officers after his arrest and during his transport to the law enforcement center were elicited in violation of his Miranda rights because Officer Brooks' statements in the patrol car constituted the functional equivalent of custodial interrogation.
Officer Brooks did not advise Wells of his Miranda rights upon his arrest or during his transport to the law enforcement center. Prior to trial, Wells objected to the admission of the dash cam DVD recording of the conversation between Officer Brooks and Wells during the trip to the law enforcement center because his incriminating statements were elicited in violation of his Miranda rights. The district court held a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing. Officer Brooks testified at the hearing, and the district court also considered an unedited version of the DVD.
At the hearing, Officer Brooks testified that Wells made two prearrest and two postarrest admissions that he was legally intoxicated:
“Uh, he—when I first made contact with the defendant, I had asked him how much he had to drink. He stated, what he said, probably enough to be over the legal limit. And then I had asked him to say that again. He told me the second time as well. After the defendant was arrested and as I was transporting him to the Law Enforcement Center, he made two statements indicating that he was over the legal limit.”
After considering the evidence, the district court overruled Wells' suppression motion regarding the two postarrest statements without stating any findings of fact or legal reasoning. At trial, Wells contemporaneously renewed his objection to the admissibility of this evidence when the State offered an edited DVD into evidence.
When a trial court admits a defendant's statements into evidence following a Jackson v. Denno hearing, “an appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard and reviews the ultimate legal conclusion drawn from those facts de novo.” State v. Warledo, 286 Kan. 927, 934–35, 190 P.3d 937 (2008). When undertaking this task, “an appellate court does not reweigh evidence or assess the credibility of the witnesses but will give deference to the trial court's findings of fact. [Citation omitted.]” 286 Kan. at 935, 190 P.3d 937.
The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, which includes the right to remain silent and the right to have an attorney present during custodial interrogation. Warledo, 286 Kan. at 935, 190 P.3d 937 (citing Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Accordingly, a defendant subject to custodial interrogation is required to be “fully advised of his or her rights through the giving of the Miranda warnings,” and law enforcement is only entitled to ask questions if the defendant “knowing[ly] and intelligent[ly]” waives his or her rights. 286 Kan. at 935, 190 P.3d 937. “[T]he essential requirements for triggering the Miranda safeguards are not present,” however, unless the defendant is “(1) in custody and (2) subjected to interrogation.” Warledo, 286 Kan. at 935, 190 P.3d 937. Thus, “ ‘[v]olunteered statements of any kind are not barred by the Fifth Amendment.’ “ Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
The parties do not dispute that Wells was “in custody.” Indeed, Wells had been arrested, handcuffed, and was being taken to the law enforcement center when the challenged incriminating statements were made. The sole issue for our review is whether Wells was “subjected to interrogation” while riding in the back of Officer Brooks' patrol car triggering the need for the Miranda safeguards. See Warledo, 286 Kan. at 935, 190 P.3d 937.
Officer Brooks testified he did not advise Wells of his Miranda rights upon arrest or during the trip to the law enforcement center because he did not plan to ask Wells any “incriminating questions.” Officer Brooks further testified that when he was transporting Wells, he did not ask Wells any questions relating to the amount of alcohol he had consumed that evening; instead, Wells voluntarily made the additional two admissions during a simple conversation. Officer Brooks described the circumstances leading to the admissions:
“We just started having conversation. By conversation it was just kind of telling him that, you know, if he keeps this kind of thing up or keeps drinking and driving, it is going to hurt somebody or himself and that a couple of points like we heard on the video there he stated that he admitted to drinking and being over the legal limit.”
Although Officer Brooks apparently did not ask Wells any specific questions, the term “ ‘interrogation’ “ includes both express questioning and “its functional equivalent, which has been defined as ‘any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ [Citation omitted.]” Warledo, 286 Kan. at 935–36, 190 P.3d 937 (quoting Innis, 446 U.S. at 300–01.) In Innis, the United States Supreme Court described the functional equivalency test as follows:
“[T]his definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” 446 U.S. at 301–02.
If the defendant makes “spontaneous, volunteered statements” after he or she is arrested and placed in custody that are not elicited through interrogation or its functional equivalent, the statements “may be admissible under the Innis rule or its progeny even if the Miranda warnings were not given.” Warledo, 286 Kan. at 936, 190 P.3d 937.
The district court ruled the postarrest incriminating statements were not made in violation of the Fifth Amendment to the United States Constitution. This ruling was based on Officer Brooks' testimony and the unredacted DVD of the conversation between the officer and Wells. We presume the trial court found all facts necessary to support its judgment. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009).
The record on appeal does not contain the unredacted DVD, however, only the redacted DVD. It is clear the redactions included the officer's statements which preceded Wells' admissions. As a result, because Wells did not designate a proper record on appeal we are unable to determine whether the district court erred when it found that Wells' statements were voluntary and not elicited through interrogation or its functional equivalent. We will not engage in speculation. The burden is on the appellant to designate a record to support a claim of error in the district court. Without such a record, the claim of alleged error fails. State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008).
Finally, assuming Wells proved error in the admission of the two postarrest admissions, we conclude such error was harmless beyond a reasonable doubt because there is no reasonable possibility that the error contributed to the verdict. State v. Ward, 292 Kan., 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).
As noted earlier, on two occasions prior to his arrest, Wells made the same or similar incriminating statements that he made on the two occasions after his arrest. Assuming the district court had suppressed the two postarrest admissions, the jury would have still heard about the two admissions made before the arrest. As discussed earlier, these prearrest admissions coupled with the other evidence produced by the State made a compelling and highly incriminating case of DUI.
Sentencing
Prior to sentencing, a presentence investigation (PSI) report was completed which indicated that Wells had the following criminal history: (1) a DUI diversion, (2) a misdemeanor DUI conviction, and (3) a felony DUI conviction. Wells subsequently filed a written objection to the inclusion of the DUI diversion in his criminal history score, claiming the diversion was invalid because the agreement did not reflect a valid waiver of counsel, preliminary hearing, or an arraignment. The district court held a hearing on Wells' objection to the PSI report. After considering the evidence, which included reviewing a copy of the DUI diversion agreement, and hearing the arguments of the parties, the district court denied Wells' motion. The district court found the diversion agreement contained language which constituted a valid waiver of counsel. The district court then sentenced Wells as a fourth time DUI offender.
Wells contends the district court committed reversible error when it included his prior DUI diversion in his criminal history score and sentenced him as a fourth time DUI offender because the diversion agreement was obtained in violation of his right to counsel. The State counters that the diversion agreement clearly states that Wells was informed of his right to counsel and Wells waived that right when he signed the agreement.
This issue involves a question of law and the interpretation of statutes, matters over which this court exercises unlimited review. See State v. Elliott, 281 Kan. 583, 586, 133 P.3d 1253 (2006).
The district judge denied Wells' objection to the inclusion of the DUI diversion finding that the diversion agreement contained language which constituted a valid waiver of counsel:
“[PROSECUTOR]: ... With regards to the waiver of counsel, I am going to ask the Court to take judicial notice; actually, of its own record, of—it is 00 TR 559, which is the diversion agreement. If the Court will turn to page four, you will see the defendant's waiver of [the] right to counsel.
“THE COURT: There is a waiver, Kelly [defense counsel].
“[DEFENSE COUNSEL]: Judge, if I may, I do have this diversion agreement and I have read that paragraph, and I would submit and stand by the proposition that is not a waiver. It certainly says that I have a right to an attorney to represent me in this matter. If I cannot afford one, one will be appointed to me. But it does not specifically say that I understandably or knowingly or intelligently waive my right to counsel after having been advised of that right. So I would just object on that aspect, Judge.
“THE COURT: Well, I'm going to overrule the—your objection, but note it for the record.”
On appeal, Wells did not provide this court with a copy of the diversion agreement. Without this document, or the wording relating to the waiver of counsel, this court is unable to determine whether the district court (which read and considered the document) erred in its legal conclusion that Wells had waived his right to counsel at the time he entered into the diversion agreement. Of course, we presume the trial court found all facts necessary to support its judgment. See Hodges, 288 Kan. at 65, 199 P.3d 1251. The burden is on the appellant, however, to furnish a record sufficient to support a claim of error. Without such a record, the claim of alleged error fails. Paul, 285 Kan. at 670, 175 P.3d 840.
Given the inadequate record presented by Wells, this issue is not properly before us for appellate review.
Imposition of the Mandatory Minimum Fine for DUI
Wells argues that the district court erred when it imposed the mandatory $2,500 fine for a fourth DUI conviction pursuant to K.S.A.2008 Supp. 8–1567(g)(l) because the court failed to first consider his financial resources and the burden the fine would impose.
In State v. Copes, 290 Kan. 209, 222, 224 P.3d 571 (2010), our Supreme Court held that the fine to be imposed under K.S.A.2009 Supp. 8–1567(g)(1) for a fourth or subsequent DUI conviction is mandatory; thus, when imposing the fine a district court is not required to consider the defendant's financial resources and the burden of the fine. However, due to the availability of the community service option, our Supreme Court held that pursuant to K.S.A. 21–4607(3),
“a district court must take into account the defendant's financial resources and the burden of the fine when considering the method of payment of a fine for a fourth or subsequent DUI offense, i.e., whether the defendant must pay a monetary fine or provide community service under K.S.A.2009 Supp. 8–1567(j).” 290 Kan. at 223, 224 P.3d 571.
The district court did not take into account Wells' financial resources or the burden that payment of the fine would impose when it considered the method of payment for the $2,500 fine. The State candidly concedes the district court failed to comply with the Copes decision.
Accordingly, while the district court did not err in imposing the mandatory $2,500 fine, it erred by not considering Wells' ability to pay and the burden payment of the fine would impose when it determined the method of payment. We vacate Wells' $2,500 fine and remand with directions to consider Wells' financial resources, the burden that payment of the fine would impose, and the appropriateness of community service as an alternative method of payment.
Wells' convictions are affirmed. The imposition of a $2,500 fine is vacated and the matter is remanded with directions. The sentences are affirmed in all other respects.
Affirmed in part, vacated in part, and remanded with directions.