Opinion
No. 107,614.
2013-06-7
STATE of Kansas, Appellee, v. Rachel Marie BROWN, Appellant.
Appeal from Johnson District Court; Stephen R. Tatum, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Clayton J. Perkins, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Stephen R. Tatum, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Clayton J. Perkins, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., McANANY and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM:
Rachel Marie Brown appeals her conviction for possession of methamphetamine. Brown contends the district court erred by denying, in relevant part, her motion to suppress incriminating statements made to Merriam Detective Chris Brokaw. Finding no error, we affirm the district court's suppression ruling and Brown's conviction.
Factual and Procedural Background
On October 25, 2010, Merriam police officers were investigating possible prostitution activity at a motel. Detective Brokaw knocked on a motel room door and Brown opened it. After receiving permission, Detective Brokaw, joined by another detective, entered the room and found, in addition to Brown, her sister Jessica Gomez.
Detective Brokaw began conversing with Brown about drugs. During this conversation, the detective told Brown “if she would work me that I would help her out.” Brown indicated she did not know about any drugs. Detective Brokaw also encouraged Brown to be honest with him and things would go better for her. At some point, the detective asked Brown to give him any drugs inside the room, but she replied that she did not know about any drugs. Brown did inform Detective Brokaw about a pipe in the room. She admitted the pipe was hers after the detective told her, “I'm not going to take you to jail over a pipe.” Brown was asked if there was any methamphetamine in the room. She claimed not to know. She did tell Detective Brokaw, however, that she had smoked methamphetamine about 2 hours earlier.
Brown consented to a search of the motel room. A purse and a Vaultz box were found on the bed, and Brown indicated that those items belonged to Gomez. Gomez consented to a search of the purse and Vaultz box, and a methamphetamine pipe and two small baggies of methamphetamine were discovered. The incriminating items were shown to Brown who commented that the methamphetamine belonged to her and Gomez. Ultimately, another pipe and a couple pills of Ecstasy were also found in the room. The conversation which occurred between Detective Brokaw and Brown in the motel room was recorded, and the recording was admitted in evidence during the suppression hearing.
Brown was arrested and taken to the Merriam police station. Detective Brokaw informed her orally and in writing about her Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Brown also signed a written Miranda rights waiver. Brown advised the detective that “she had pitched in $20 to help purchase” the methamphetamine and that it belonged to her and Gomez. Brown also repeated her admission about smoking methamphetamine earlier in the day.
Following a bench trial, Brown was convicted of possession of methamphetamine. The State also charged Brown with possession of drug paraphernalia, but the district court suppressed evidence for this charge and then acquitted Brown after hearing the balance of the evidence at trial. Brown was sentenced to 12 months' imprisonment and placed on probation for 12 months. She filed a timely appeal.
Discussion
On appeal, Brown argues her incriminating statements were involuntary because Detective Brokaw promised her leniency.
An appellate court applies a bifurcated standard of review, considering the district court's factual findings for substantial competent evidence and the ultimate legal conclusion de novo. See State v. Sanchez–Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012); State v. Edwards, 291 Kan. 532, 545, 243 P.3d 683 (2010).
The voluntariness of a confession is determined under the totality of the circumstances. State v. Sharp, 289 Kan. 72, 80, 210 P.3d 590 (2009).
“A nonexclusive list of factors bearing on the voluntariness of a statement by an accused include the accused's mental condition; the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; the fairness of the officers conducting the interrogation; and the accused's fluency with the English language. The essential inquiry is whether the confession was the product of the free and independent will of the accused.” 289 Kan. 72, Syl. ¶ 3.
Brown only complains about the fairness of the detective in asking her questions. “Coercion of an accused's confession can be mental as well as physical and include promises as well as threats.” 289 Kan. 72, Syl. ¶ 4. We must, therefore, consider the promises at issue here under the totality of the circumstances.
Unfortunately, we are prevented from conducting an appropriate review of this issue because Brown's briefing is inadequate. While Brown alludes in her statement of facts to alleged promises of leniency by Detective Brokaw and quotes one in particular, she argues none of them. For example, Brown does not suggest which promises were coercive, does not identify the coercive elements in them, and does not explain how they affected her behavior.
It is uncontroverted that Detective Brokaw made one coercive promise, telling Brown, “I'm not going to take you to jail over a pipe.” The State conceded the coercive effect of this promise in briefing below, and the district court suppressed Brown's admission to ownership of the pipe, and the pipe itself, based on Detective Brokaw's promise. But on appeal, Brown does not similarly connect any particular promise by Detective Brokaw to any particular incriminating statement or other evidence.
It is not the proper function of an appellate court to sua sponte survey the record on appeal, identify the statements by Detective Brokaw that may be in issue, identify the objectionable elements in them, and then relate them to specific incriminating responses by the defendant.
We are especially unwilling to engage in this process because the record on appeal is inadequate. Detective Brokaw testified at the suppression hearing to wearing a digital recorder which memorialized his conversation with Brown in the motel room. The district court admitted the recording into evidence, listened to parts of it during the hearing, and then took the matter under advisement prior to issuing its written order. The recording, however, is not found in the record on appeal.
Our Supreme Court has addressed this inadequacy:
“The State has the burden of proving that a confession was voluntary. However, the appellant has the duty to properly designate the record on appeal to challenge a confession's admissibility, and, if that appellate record is inadequate, the appellate court will presume that the district court's findings were properly supported.” State v. McMullen, 290 Kan. 1, Syl. ¶ 1, 221 P.3d 92 (2009).
We presume the district court's findings regarding the conversation between Detective Brokaw and Brown in the motel room were proper in the present case. The inadequacy of appellant's briefing is sufficient itself to deem the issue waived or abandoned on appeal. See State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011). But without an opportunity to consider the audio recording, we could not with confidence attempt to review the district court's legal conclusion that Brown's “responses to these statements by Detective Brokaw ... were not involuntary.”
As for Brown's incriminating statements at the police station, we have no arguments by Brown. Assuming there was some impropriety in the questioning of Brown inside the motel room, Miranda warnings and other factors may attenuate a prior illegality, rendering a later confession admissible. See State v. Oram, 46 Kan.App.2d 899, 920–21, 266 P.3d 1227 (2011).
In the present case, the district court refused to suppress Brown's statements made in the police station, despite the coercive effect of the promise regarding the methamphetamine pipe, because of “a break in the causal connection” between the events in the motel room and the interview at the station. Brown neglects this aspect of the district court's ruling on appeal. Accordingly, any complaint regarding the post- Miranda incriminating statements is waived or abandoned. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Affirmed.