Opinion
No. 107,918.
2013-10-11
STATE of Kansas, Appellee, v. Scot LANSFORD, Appellant.
Appeal from Haskell District Court; Clint B. Peterson, Judge. Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, for appellant. Lynn Koehn, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Haskell District Court; Clint B. Peterson, Judge.
Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, for appellant. Lynn Koehn, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., McANANY and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Scot Lansford of two counts of aggravated indecent liberties with a child under the age of 14. The district court sentenced Lansford to two consecutive life sentences, without possibility of parole for a total of 50 years. Lansford will be eligible for parole when he is about 93 years old. Lansford appeals his convictions and sentences on several grounds, including improper admission of his confessions and exclusion of his expert's testimony, several instructional errors, improper handling of jury questions, failure to comply with the statutory procedures for accepting a verdict, cumulative error, improper consideration of relevant sentencing factors, and imposition of an unconstitutional sentence.
The child involved in this case is the daughter of Richard and Mechelle. Richard, his common-law wife, Mechelle, and their three young daughters moved from Colorado to Sublette, Kansas, after Richard lost his job. The family moved to Kansas because Lansford, Richard's longtime friend, offered Richard a position in his construction company and invited them to stay with him in his trailer until they could find a place of their own.
On Monday, October 12, 2010, when they arrived in Sublette, the family met Lansford at a bowling alley where Mechelle and Lansford had some beers. When they returned from the bowling alley, Mechelle got her children ready for bed. She later testified that she dressed her 5–year–old daughter, C.P., in pajamas and Pull–Ups in case she had an accident during the night. C.P. and her 3–year–old sister shared a twin bed in the bedroom in the back of Lansford's trailer. Their 1–year–old sister slept next to them in a portable crib.
Once the children were in bed, the adults had some drinks until they went to bed around 1 a.m. Lansford slept in his own bedroom on the opposite end of the trailer. Richard and Mechelle slept on an air mattress in the living room, which was between the two bedrooms. According to Mechelle, she and Lansford were drunk when they all went to bed. Richard said, “We don't get to the point where you can't walk or anything, but to tie one over a little, it was not abnormal.”
The next morning, Tuesday, October 13, 2010, C.P. woke up naked from the waist down. Mechelle discovered C.P.'s dry Pull–Ups and pajama bottoms on the floor next to her bed. Richard and Mechelle had some slight concern because C.P. normally did not remove dry Pull–Ups.
Richard and Lansford went to work, and Mechelle spent the day in the trailer with the children. That evening they followed the same bedtime routine as the night before. After the children were put to bed, the adults had some drinks before going to bed. Richard stated that he had “two or three drinks and about the same of shots.” Lansford had about the same amount to drink. Richard testified that when he went to bed he was “[f]airly intoxicated, again, not to the point where I was stumbling or anything, but definitely feeling the effect of the alcohol.” Mechelle maintained that she was “buzzed” but not drunk.
Mechelle testified that she awoke in the middle of the night and saw Lansford walking down the hallway from the girls' bedroom. When she asked Lansford what he was doing, Lansford told her that he “heard a noise from the back room, and he was just checking on the kids to make sure they were okay.” Mechelle then checked on her children and found nothing out of sorts.
On Wednesday morning, October 14, 2010, Mechelle again discovered C.P. naked from the waist down, but Mechelle “ ‘[d]idn't think anything of it because [she] thought maybe [C.P.] was adjusting to the new environment.’ “ Mechelle found C.P.'s dry Pull–Ups on the floor next to her bed, but unlike the previous morning, C.P.'s bed was wet. Mechelle told C.P. that she “needed to keep her pants on,” but because C.P. does not wet the bed often, Mechelle did not “really make a big deal about it.”
That evening, the family went to the bowling alley where Richard had a beer and he believed Mechelle and Lansford each had two. After Mechelle put the children to bed, the three adults again had some drinks. According to Richard, they “drank a little bit more that night” and Lansford was “pretty drunk.”
The following morning, Thursday, October 15, 2010, C.P. was again naked from the waist down. When Mechelle asked C.P. why she had been taking off her Pull–Ups and pajama bottoms, C.P. said, “I'm not.' “ When Mechelle asked her who did, C.P. replied, “ ‘Uncle Scot.’ “ When Richard questioned her further about removing the Pull–Ups, C.P. responded “ ‘Uncle Scot did ... [when] he was playing with myself.’ “ Mechelle laid C.P. on the bed without her pants on, touched C.P.'s genital area, and asked her if “ ‘Uncle Scot touch[ed][her] here.’ “ C.P. said that Lansford did so with his fingers three times.
Mechelle and Richard immediately packed up and left Sublette. When they returned to Colorado they contacted local law enforcement. Investigator Lee Hoag arranged for Richard to make two phone calls to Lansford.
The first call was on October 20, 2010. Richard told Lansford about C.P.'s allegations and that Mechelle did not know anything about this situation but Mechelle had seen Lansford coming from the girls' bedroom. Richard urged Lansford to tell him what happened. Lansford stated that he “would never do anything like that.” When Richard asked if maybe he got “too drunk,” Lansford acknowledged that he had been extremely intoxicated and he could not remember anything that happened after he went to bed. Lansford made statements to the effect that: “ ‘I can't believe I would do something like that’ “ and “ ‘I hope I didn't do something like that.’ “ Richard stated that he could understand if Lansford needed help; he wanted to help him because they were friends. Lansford acknowledged that he did not think C.P. would lie, and if she said it happened, it must have happened. But he continued to maintain that he did not remember anything; “I don't know what happened. If I did something, then that's just crazy.” Towards the end of the call, Richard told Lansford that going to the police could be avoided if Lansford told the truth, apologized to Mechelle, and agreed to get some help. Richard told Lansford to take some time to think things over and he would call him again the following day.
In the second phone call on the following day, Lansford apologized: “I'm really sorry, dude, I can't believe I did something like that.” He said that after thinking about it, he thought that he probably did touch C.P. but he was so intoxicated on the nights in question that he could not really remember what happened. But he then acknowledged that he touched or rubbed C.P. with his hands.
A warrant was issued for Lansford's arrest. On October 25, 2010, Undersheriff David Hudgens of the Haskell County Sheriff's Department confronted Lansford at his place of employment and told Lansford that he “needed to speak with him.” Hudgens was wearing his firearm but no uniform. He wore blue jeans and a polo shirt with an embroidered patch. Hudgens transported Lansford to the sheriff's department where he conducted a recorded interview.
Hudgens read Lansford his Miranda rights but “played down” the Miranda warnings by telling Lansford, “ ‘This is just because you're in my office.’ “ Hudgens did not inform Lansford that he was under arrest. Lansford told Hudgens that he drank excessively on the nights in question and could not remember anything that happened. But he stated:
“I think, uh, I think I drank too much and I probably went in there and did something to her. I don't know what. I don't know why. I don't understand it. I just can't believe it happened. I'm really broke up right now. I just don't know.... [T]he problem is that I don't remember anything, except for talking to [Richard and Mechelle] and then waking up the next morning.”
Hudgens told Lansford that if Lansford told the truth, C.P. and her sister might not need to be subjected to an unpleasant sexual assault investigation. Hudgens said he could “ ‘fix things' “ if he told the truth. Hudgens said this to put Lansford at ease, to make sure Lansford understood that Hudgens had “an open mind.” Lansford then told Hudgens that while his memory was vague, he remembered “rubb[ing]” C.P.'s pubic area twice.
The State charged Lansford with three counts of aggravated indecent liberties with a child, under 14 years of age, by engaging in lewd fondling or touching with the intent to arouse or satisfy his own or the child's sexual desires.
At trial, Lansford testified in his own defense. According to Lansford, after his grandmother's death in 2008, he developed a drinking habit, and when Richard and Mechelle came to stay with him in 2010, he was addicted and needed “alcohol everyday, every night.” Although Lansford started out as a “binge drinker,” “the type of drinker that would just drink until [he] pass[ed] out,” he evolved into a “maintenance drinker,” the type of drinker that has to “drink a certain amount to live everyday,” because he could not let the alcohol affect his work. Lansford explained that he routinely went to the liquor store after work and purchased “the right amount [of alcohol] for that night,” and, according to Lansford, “[a] pint of Hot Damn, 100, would be sufficient.” Lansford explained that prior to Richard's visit, he had been experiencing blackouts and having “some difficulties with passing out and falling down in [his] house and remembering ... how [he] got to bed and stuff like that.”
Lansford stated that on the three evenings Richard and his family stayed with him, he drank “more than [he] would normally drink.” Specifically, on Monday night, Lansford purchased his “usual Hot Damn”; on Tuesday night, he bought his “Hot Damn and ... another bottle of vodka”; and on Wednesday night, he purchased his “Hot Damn” and “two bottles of vodka, 100 proof vodka. And one of the bottles was the big one, bigger than the fifth.”
Lansford denied fondling or inappropriately touching C.P. He stated that while he initially had a hard time remembering what occurred, when listening to previous testimony, especially Richard's, “things started coming back” to him. The testimony “helped trigger [his] own independent recollection” of the events that occurred while Richard and his family were in Kansas.
Lansford testified that after Richard and his family arrived on October 12th, Richard and Mechelle smoked a “little weed” and they all drank heavily before going to bed. Lansford indicated that it was “really hard to count” how many drinks he had that evening. It seemed like “every time [he] was out of a drink, [Mechelle] refilled [it].” Lansford barely remembered going to bed Monday night, and when he woke up the next morning, he was still wearing the same clothes.
On Tuesday evening, the three adults “hung out outside ... drinking [and] smoking.” Lansford tried to play some video games with Richard after Mechelle went to bed, but he was so intoxicated that he could not “even see the screen,” so he and Richard went to bed around 1 a.m.
Wednesday morning Lansford was “tired and hungover” when he woke up. He was still wearing his clothes, his hat, his shoes, and his glasses. That evening, everyone went to the bowling alley. After bowling, the adults were “hanging outside and ... drinking ... quite a bit” before they went to bed.
Thursday night Richard and Mechelle and the children left for Colorado. When Richard later called at the behest of Investigator Hoag, Lansford said:
“I was still under the effects of alcohol, you know, drinking everyday. Your next day is kind of a—it's kind of like a detox, you know, you're detoxing from the night before. I was—I wasn't—basically, I wasn't running on all cylinders. If I was an eight-cylinder engine, I was probably only running on three cylinders.”
According to Lansford, at the time of the phone calls and his police interview he could not remember whether he touched C.P. because he was still “under the effects of alcohol, and [he] wasn't in reality.” According to Lansford, the alcohol rehabilitation program he completed following his arrest helped him restore his memory and, thus, he now knew, for certain, that he never touched C.P. inappropriately.
When Richard told him about C.P.'s statements, Lansford said he was “in complete shock and disbelief.” He did not believe he was capable of committing such crimes. He repeatedly asked himself, “[D]o I remember that? I don't remember that. All I remember is drinking and going to bed and waking up in the morning.”
“I was feeling there's no way that it happened. There's no way that I did it. But they're telling me that I did it. So I started to go through this struggle in my head about how—where is this coming from, how is this possible, you know, trying to remember stuff, trying to remember that night, trying to remember the time they were there, trying to just put it altogether, and I couldn't do it. I don't remember from the time that I had went to bed until the time I got up in the morning, I just remember being in my bed asleep .”
Regarding his confession to Richard in their second phone call, Lansford said:
“Yeah, what I was thinking was, I had two options. You know, he was talking about going to the cops, and I was thinking that the girls are going to have to be investigated, the family's going to have to be investigated. We're all going to be in this whole huge nightmare mess. That was just so scary, that when [Richard] was telling me all I needed to do was just admit to him that something happened, it just seemed like, you know, instead of going to the nightmare, if I just said this over here, he was just going to—you know, I would maybe have to get help with drinking, and he was going to say—he told me he could forgive it and that we could work it out, and I just chose that instead of the nightmare.”
Similarly, Lansford testified that he confessed to Hudgens because Hudgens told him that he could “fix things” and spare Richard's family from undergoing a lengthy and nightmarish investigation and Lansford knew that Hudgens already had a preconceived idea of what happened. Consequently, Lansford told Hudgens what he wanted to hear.
The jury convicted Lansford of two counts of aggravated indecent liberties and acquitted him of the third count.
Lansford's criminal history consisted of one misdemeanor conviction for possession of marijuana in 2008. While the case was pending he was evaluated and treated at The Meadows treatment facility. One of the purposes of his evaluation was to rule out any sexual disorder. He was diagnosed with a longstanding addiction to alcohol but not found to have any sexual disorder.
Lansford moved for a downward durational departure sentence and claimed that a Jessica's Law sentence with lifetime postrelease supervision and lifetime registration as a sex offender constituted cruel and unusual punishment. At the sentencing hearing the court heard extensive mitigation testimony from six character witnesses. Lansford argued that there was no evidence of penetration or physical harm to the child and that with respect to any possible psychological harm, there had been no therapeutic intervention for the child since these incidents. The prosecutor expressed his agreement with the legislature's express position in the sentencing scheme that Lansford's crimes are “more serious than someone who kills somebody.” The prosecutor stressed the aggravating factor of Lansford's close relationship with the victim.
The judge denied Lansford's departure motion and his constitutional challenge. Because Lansford's six character witnesses failed to indicate “anything near accepting that the defendant was convicted by a jury of committing aggravated indecent liberties to a five and-a-half year old girl in the middle of the night,” the judge concluded: “I have to discount everything that they testified to.” The judge found Lansford presented “a high degree of danger” to children under age 10 who were alone with him. The judge also noted that Lansford “has yet to take responsibility for his actions.” In sum, the judge determined that the aggravating factors enumerated by the State outweighed any mitigating factors presented by Lansford.
Because of the “repetitive nature of Count One and Count Two” and “the problems that little girl is going to have to deal with the rest of her life,” the judge sentenced Lansford to two consecutive life sentences, without possibility of parole for a total of 50 years, lifetime postrelease supervision, and lifetime registration as a sex offender.
Lansford's Claims of Trial and Sentencing Errors
Lansford appeals. He claims error in both the trial, which led to his convictions, and in his sentencing.
The trial errors Lansford claims are (1) the district court's failure to exclude evidence of his confessions to Richard in the phone calls and to Undersheriff Hudgens in his interview; (2) the district court's exclusion of Lansford's expert witness on the issue of false confessions; (3) the district court's erroneous jury instructions on criminal intent and its refusal to answer questions from the jury seeking clarification; (4) the district court's erroneous instruction on unanimity; (5) the district court's failure to ask the jury if this was its verdict; and (6) cumulative error.
Lansford also claims sentencing errors (1) in the court's fact finding regarding Lansford's mitigation witnesses; and (2) in the court's imposition of grossly disproportionate and unconstitutional sentences of two consecutive life terms. Because of our ruling on Lansford's claim regarding the exclusion of his proffered expert testimony and our remand of the case to the district court for a new trial, we need not reach most of his other claims of trial and sentencing errors. But because the issues surrounding Lansford's confessions are likely to arise again on retrial, we will consider them now.
Failure to Exclude Evidence of Lansford's Confessions
Lansford argues that the district court erred when it denied his pretrial motion to suppress his confessions because law enforcement obtained his statements in violation of the due process requirement that his confession be voluntary.
We review, but do not reweigh, the evidence to determine if the facts found by the district court which underlie its suppression decision are supported by substantial competent evidence. We review de novo the district court's ultimate legal conclusion drawn from those facts. State v. Walker, 292 Kan. 1, 5, 251 P.3d 618 (2011). Substantial competent evidence is evidence possessing both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. State v. Walker, 283 Kan. 587, 594–95, 153 P.3d 1257(2007).
As stated in State v. Morton, 286 Kan. 632, Syl. ¶ 6, 186 P .3d 785 (2008), cert. denied555 U.S. 1126 (2009), “Unwarned inculpatory statements obtained through noncustodial interrogation, although not barred by Miranda, may nevertheless be inadmissible if they were obtained in violation of the due process voluntariness requirement.” Giving the Miranda warning “ ‘does not coincide with the constitutional standard of voluntariness, but is only a prophylactic procedure to aid in determining the admissibility of confessions.’ [Citation omitted.]” Morton, 286 Kan. at 650. While Miranda is “ ‘the first line of inquiry in every case, the voluntariness standard is the ultimate criterion for the admissibility of a confession.’ “ Morton, 286 Kan. at 649.
In determining whether a defendant's confession was voluntary, courts examine the totality of the circumstances. “ ‘[T]he essential inquiry ... is whether the statement was the product of the free and independent will of the accused.’ [Citation omitted .]” Morton, 286 Kan. at 650; see State v. Swindler, 296 Kan. 670, 678–79, 294 P.3d 308 (2013). When making this determination, courts consider the following, nonexclusive factors:
“ ‘(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. [Citations omitted.]
....
“ “ ‘ ‘[T]hese factors are not to be weighed against one another ..., with those favorable to a free and voluntary confession offsetting those tending to the contrary. Instead, the situation surrounding the giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. [Citation omitted.] Even after analyzing such dilution, if any, a single factor or a combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances a suspect's will was overborne and the confession was not therefore a free and voluntary act.’ [Citations omitted.]' “ [Citation omitted.]” Swindler, 296 Kan. at 678–79.
K.S.A.2012 Supp. 60–460(f) also governs the admissibility of confessions or statements by the accused:
“In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged, but only if the judge finds that the accused (1) when making the statement was conscious and was capable of understanding what the accused said and did and (2) was not induced to make the statement (A) under compulsion or by infliction or threats of infliction of suffering upon the accused or another, or by prolonged interrogation under such circumstances as to render the statement involuntary or (B) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same.”
When a criminal defendant moves to suppress a confession, the State bears the burden of proving by a preponderance of the evidence that the defendant's confession was made voluntarily. 296 Kan. at 679.
— Sufficiency of the District Court's Factual Findings
In denying Lansford's suppression motion, the district court did not make specific factual findings regarding the circumstances surrounding the interviews. But Lansford did not object to the district court's lack of findings. Thus, we presume that the district court made the findings necessary to support its decision. State v. Gaither, 283 Kan. 671, 686, 156 P.3d 602 (2007). We then “proceed directly to the legal conclusions attendant to each claim without addressing whether the factual findings were supported by substantial competent evidence. [Citation omitted.]” State v. Harris, 293 Kan. 798, 808, 269 P3d 820(2012). — Richard's Phone Calls
Lansford claims Richard's phone calls were fundamentally unfair because Richard falsely led him to believe that neither Mechelle nor the police were aware of C.P.'s accusations and Richard reassured him that if he told the truth his friendship “might survive,” he “might be able to keep Mechelle from involving the police,” and C.P. would not have to endure an invasive physical examination.
At the hearing on Lansford's suppression motion, Investigator Hoag testified that the purpose of Richard's phone calls was “[f]or the victim to confront his friend about his daughter's abuse, and to get answers, and to find the truth.” Hoag wrote down things for Richard to talk about before making the calls. During the calls Hoag sat next to Richard and handed him notes “directing him on what to say.” Lansford said he was influenced by Richard's statement that “he could smooth things over with his wife if it was just touching, and maybe law enforcement wouldn't get involved.”
Lansford's telephone conversations with Richard were not custodial interrogations. As the district court noted in ruling on the suppression motion, Lansford could have hung up the phone at any time during the calls. But Lansford claims the statements he made to Richard in those calls were involuntary because law enforcement unfairly used Richard, his close friend, as an agent of law enforcement to overcome Lansford's free and independent will. Richard promised he would talk to Mechelle to “see if he could keep her from [over]reacting.” Richard knew that during Lansford's divorce he was wrongly accused of sexual impropriety with his daughter. Richard used the pain Lansford experienced while his daughter was needlessly subjected to “repeated questioning and medical testing” to further convince him to admit guilt to save C.P. from the same torment.
None of these interrogation tactics demonstrates coercion. In Harris, the defendant claimed that the police coerced him to confess because the detective lied to him about nonexistent evidence, and the Kansas Supreme Court found that this tactic was not coercive:
“But this court has held that ‘[d]eceptive interrogation techniques alone do not establish coercion.’ State v. Harris, 279 Kan. 163, 170, 105 P.3d 1258 (2005). And we have also held a confession voluntary even when officers lied to the defendant during an interview. See, e.g., State v. Ackward, 281 Kan. 2, 10, 128 P.3d 382 (2006) (confession voluntary even when defendant falsely told surveillance camera recorded him just prior to the shooting, that gunshot residue analysis would determine if he held a gun within the past 48 hours, and that multiple eyewitnesses were at the scene); State v. Wakefield, 267 Kan. 116, 128, 977 P.2d 941 (1999) (statement not involuntary where defendant falsely told that officers had information and evidence implicating him in murder, including finding his fingerprints).” Harris, 293 Kan. at 811.
Under controlling precedent, Richard's phone calls to Lansford were not coercive.
— Hudgens' Interview
Lansford claims that his confession to Hudgens was involuntary because Hudgens downplayed the Miranda warnings; did not inform Lansford that he was under arrest; told Lansford that he could “ ‘fix a lot of things' “ if he told the truth; made “excessive overtures of friendship”; used the involuntary statements made to Richard to coerce a confession; and utilized the same unfair investigative tactics as employed during the phone calls.
Hudgens testified that although he listened to the recording of Richard's phone calls before speaking with Lansford, he did not write anything down because he wanted to base his questions off of his own conversation with Lansford. Hudgens adequately informed Lansford of his Miranda rights prior to asking him any questions. While Lansford argues that Hudgens utilized the “coercive practices that led [him] to confess to Richard,” we have already determined that the investigative tactics used in Richard's phone calls were not fundamentally unfair. Lansford claims that Hudgens coerced him to confess by utilizing “excessive overtures of friendship” and indicating that he could ‘ “fix a lot of things' “ if Lansford told the truth. These tactics are not unduly coercive. A vague promise to “fix” things is certainly less egregious than lying to a defendant about nonexistent evidence. See Harris, 293 Kan. at 811. Moreover, Hudgens' vague promise to fix things does not satisfy the standards set forth in State v. Garcia, 297 Kan. 182, 196, 301 P.3d 658 (2013), for excluding a confession elicited by an improper inducement:
“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. [Citation omitted.]”
Finally, the fact that Hudgens appeared to play on Lansford's emotions does not, of itself, constitute coercion. See State v. Robinson, 293 Kan. 1002, 1020–21, 270 P.3d 1183 (2012). The district court did not err in failing to find that Hudgens' interview of Lansford was coercive. The interview techniques that led to Lansford's admissions were not coercive, and the district court did not err in finding that Lansford's admissions were made voluntarily.
— Intoxication
Lansford argues that he was an alcoholic at the time of his crimes, and “[e]xperts have recognized that ‘suspects intoxicated at the time of the crime are likely to be especially vulnerable to internalized false confessions.’ Jacqueline R. Evans, et al., Intoxicated Witnesses and Suspects: Procedures and Prevalence According to Law Enforcement, 15 Psychol. Pub. Pol'y & L. 194, 215 (2009).” Thus, Lansford contends that his alcoholic condition rendered him unable to exercise his free and independent will during Richard's phone calls and during Hudgens' interview.
The admissibility of Lansford's confessions was first addressed at the suppression hearing held in May 2011. There was no reference at that hearing to any anticipated expert testimony bearing on the voluntariness of Lansford's confessions due to his alcoholism. When the confessions were offered at trial in December 2011, Lansford renewed the objections he had previously made at the suppression hearing, again without the support of any expert opinion evidence. Thus, we consider the issue of whether intoxication affected the admissibility of Lansford's confessions without reference to the anticipated testimony of Dr. Theodore Moeller which Lansford later proffered at trial on this issue and which the district court rejected.
On their face, Lansford's statements to Richard and to Hudgens were appropriate and coherent. As explained by the Kansas Supreme Court, “This court will not infer impairment based on evidence of consumption alone.' “ Harris, 293 Kan. at 809. Lansford's position at the suppression hearing, without the benefit of the opinions of Dr. Moeller, was that he had been intoxicated on the nights that he was accused of molesting the child, not that he was intoxicated at the time of his statements to Richard and to Hudgens. At the suppression hearing, Lansford specifically stated that he was not intoxicated when he spoke to Hudgens. At trial, Hudgens testified that Lansford did not appear to be under the influence of any illicit or intoxicating substances during the interview. Based upon the totality of circumstances, but without the benefit of Dr. Moeller's contrary testimony, we conclude that the district court did not err in determining that Lansford's statements were not rendered involuntary and inadmissible because of Lansford's consumption of alcohol.
Failure to Admit the Testimony of Dr. Moeller
Lansford contends that the district court abused its discretion when it excluded the expert testimony of Dr. Moeller regarding alcohol dependence and false confessions.
Approximately 6 weeks before Lansford's trial, and many months after the hearing on Lansford's suppression motion, Lansford gave notice of his intention to call Dr. Moeller, a licensed clinical psychologist, as an expert witness regarding an alcoholic's susceptibility to making a false confession. The State objected, and the court excluded Dr. Moeller's testimony.
Lansford made a proffer of Dr. Moeller's testimony. His counsel stated that if permitted to do so, Dr. Moeller would testify that individuals who consume alcohol to the point of intoxication on a daily basis, which he assumed was an indication of alcohol addiction, are affected by the alcohol throughout the day, as these individuals are functioning either in an intoxicated state or experiencing withdrawal. According to Dr. Moeller, while in the state of withdrawal, the individual's cognitive processing slows down, causing the person to think “less clearly, [and] probably makes decisions that would, normally for that person, not be made.”
The district court ruled that Dr. Moeller would not be permitted to testify. In doing so, the court noted:
“I mean, this country is a country of people who consume alcohol. Of the 48 prospective jurors that were questioned, I think there was maybe five or six, seven, that said they don't drink. So the jury is experienced in alcohol, drinking alcohol, the effects of alcohol. And so again, I don't think you're offering something that's outside the normal human experience.”
Lansford was permitted to expand his proffer with 22 pages of sworn testimony from Dr. Moeller outside the presence of the jury. Dr. Moeller testified that during an alcoholic blackout, memory function is impaired, causing amnesia afterwards, while “[e]xecutive functioning” may not necessarily be affected. Individuals experiencing blackouts “can walk, they can talk, ... hypothetically, they may be able to drive a car to a greater or lesser degree of effectiveness.” According to Dr. Moeller, individuals suffering from amnesia are prone to the phenomenon of confabulation, “the contamination of a response or an experience or a memory” with extraneous information interjected from outside sources. Such an individual is more apt to confabulate information that is provided from a trusted individual or an authority figure. Dr. Moeller described the use of a mental status exam to identify confabulation. He indicated that alcohol-dependent individuals subjected to police interrogation involving repeated confrontation with assurances that something happened are more susceptible to providing a “false positive,” an affirmative response to information that is not accurate, especially if a close friend conducts the interrogation. Dr. Moeller has taught interviewing techniques to medical students and residents to correct for this phenomenon.
Finally, Dr. Moeller stated that the general population does not intuitively understand compulsive disorders, the intensity of experiencing withdrawal, or the effects of alcohol dependency; in particular, the fact that an individual that is chemically dependent upon alcohol is affected “not just during the periods of acute intoxication, but afterwards and before the next period of intoxication.” Dr. Moeller stated that unless one has personally experienced amnesia, one cannot appreciate the impact upon one's perception of life or the fear associated with a lack of recollection.
After Lansford completed his testimony, his counsel asked the district judge to reconsider his previous ruling on Dr. Moeller's testimony, and the district judge denied her request: “Well, based upon what I heard, I actually became more convinced it would be inappropriate testimony to be presented to the jury.”
Appellate courts employ a multistep analysis when examining a district court's admission or exclusion of evidence. State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 (2010). The first step involves determining whether the evidence was relevant. 290 Kan. at 817. In this case, the parties do not dispute the relevancy of Dr. Moeller's testimony, and “[i]t is obvious that evidence going to the credibility to be afforded a defendant's confession is relevant.” State v. Oliver, 280 Kan. 681, 693, 124 P.3d 493 (2005), overruled on other grounds by State v. Anderson, 287 Kan. 325, 197 P.3d 409 (2008).
Once relevance is established, the second step is to determine which rules of evidence or other legal principles apply. The applicable rules for cases involving the admissibility of expert opinion testimony on the making of a confession are K.S.A. 60–456 and K.S.A. 22–3215.
K.S.A. 60–456, which governs the admission of expert opinion testimony, provides in pertinent part:
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
....
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.”
Dr. Moeller's proffered testimony met the criteria set forth in K.S.A. 60–456. He premised his opinions on facts personally known to him, and his testimony fell within the scope of his special knowledge, skill, experience, and training.
K.S.A. 22–3215 prohibits the trial court from submitting to the jury the issue of the admissibility of a confession. But the statute also provides: “The circumstances surrounding the making of the confession or admission may be submitted to the jury as bearing upon the credibility or the weight to be given to the confession or admission.” K.S.A. 22–3215(5). As stated in State v. Cline, 295 Kan. 104, 109, 283 P.3d 194 (2012) (quoting Oliver, 280 Kan. 681, Syl. ¶ 9):
“ ‘A criminal defendant against whom a confession will be admitted may be permitted to introduce expert psychological or psychiatric testimony bearing on his or her ability to respond reliably to interrogation. It is essential, however, that the testimony actually tell jurors something they would not otherwise know from their usual human experience and that it remain hypothetical or theoretical. It must stop short of expressing the expert's judgment on the defendant's reliability in the specific instance of the confession submitted for the jury's consideration.’ [Citation omitted.]”
A district judge has discretion to decide whether to admit such evidence. Thus, on appeal, we review the trial judge's ruling for any abuse of discretion. Cline, 295 Kan. at 109;Oliver, 280 Kan. 681, Syl. ¶ 7. A judicial action constitutes an abuse of discretion
“if [the] judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
Here, the parties dispute whether substantial competent evidence supports the district court's finding that Dr. Moeller's testimony would not have been helpful to the jury and whether Dr. Moeller's proffered testimony stopped short of expressing an opinion on the reliability of Lansford's confessions in this case. — Helpfulness of Dr. Moeller's Testimony
The court in Oliver described confabulation as a process through which “ ‘one who has little or no memory of events occurring because of a blackout will gather information from outside sources to fill in the gaps in memory.’ [Citation omitted.]” Oliver, 280 Kan. at 696–97. The district court found that Dr. Moeller's testimony about confabulation would not be helpful to the jury based upon the notion that because members of the jury were familiar with the experience of drinking alcohol, the jurors would know without expert testimony how alcohol affects the mind of a chronic abuser of alcohol.
Examining the voir dire responses of prospective jurors who ultimately served on the jury, D.A. stated that she had been around someone who drank so much “that they weren't sure what had happened the next day.” J.J. had a similar observation. So had V.W. and S.W. J.P. never experienced such a situation. J.G. thought it could happen. All of these remarks were predicated on scenarios involving binge drinking, usually in the context of college drinking experiences. None dealt with observations of the chronic alcoholic, such as is apparently Lansford's condition. Further, these observations do not address the confabulation phenomenon that Dr. Moeller's testimony would address.
When asked, “Have you ever been around anybody that had so little memory of what had happened that you could pretty much just tell them anything?”, D.A. initially responded, “Pretty much, yeah .” But D.A. later stated that you cannot convince somebody that they did something that they do not remember doing. “[N]o I don't think you can convince them.” J.J. agreed with D.A.'s ultimate response, stating, “I'm not so sure we ever convinced them that they did it, you know, even if they did.” L.M. observed that what convinced a college roommate who had blacked out from drinking was not what his friends told him the next day, “it was the Polaroid pictures that convinced him.” But when J.P. was asked about his best friend telling him about something he did last night, he responded that he probably would believe what his best friend said rather than what a casual acquaintance said. “[I]f it was a best friend told me that, yeah.” To the contrary, V.W. thought the issue did not turn on whether the person was told by a friend but rather “[j]ust because they couldn't remember, I guess.” J.S. opined that if a friend told him he did something “that you just don't think sounds like you,” the friend might, at least, make him question himself. Again, the juror responses were all to scenarios of college episodic binge drinking, not to scenarios involving long-term chronic alcoholics.
The observations of panel members who were not selected to serve on the jury display a similar wide variety of opinions about how a binge drinker might respond the next day to the suggestions of others.
Jurors bring to the decision-making process a collective wisdom drawn from their variety of life experiences. They often have to rely on those experiences without the benefit of any scientific support. But when an expert is available to provide information that would impart to the jurors a deeper understanding of what they observed and provide a scientific framework to their otherwise episodic experiences as lay jurors, we find it hard to believe that such testimony would not be helpful to them, particularly when all the jurors do not have experience regarding the topic and when those who do have opinions contradict one another. What Dr. Moeller intended to discuss was hardly a matter of universal experience.
We all have a rudimentary understanding of basic physical laws based on our common sense observations of the world, with a little help from a high school physics class. But that does not mean that in trying to understand the forces at work when two fast moving objects collide on a roadway the analysis of one trained in physics would not be helpful. The ins and outs of confabulation by a chronic alcoholic experiencing withdrawal are not things that everybody knows. Some of the jurors here had no experience with the notion. Others had conflicting views. We find no support for the conclusion that under the facts presented here, Dr. Moeller's expert testimony would not have been helpful to the jury. — Invading the Province of the Jury
The district court also found that Dr. Moeller's testimony would invade the province of the jury because it feared the jury would interpret his proposed testimony, even when couched in hypothetical terms, as a credibility judgment regarding the veracity of Lansford's confessions.
Excluding expert testimony on this basis created an impossible hurdle for Lansford. To be admissible, Dr. Moeller's testimony had to be relevant. To be relevant, it had to be both probative and material. “Evidence is probative if it has any tendency to prove any material fact. [Citation omitted.]” State v. Stafford, 296 Kan. 25, 43, 290 P.3d 562 (2012). Materiality requires the evidence to have “a legitimate and effective bearing on the decision of the case and [be] in dispute.” 296 Kan. at 43. Thus, to be properly admitted, Dr. Moeller's testimony had to address a disputed material fact: the accuracy of the admissions Lansford made in his confessions. The testimony also had to be relevant by tending to prove that Lansford's confessions were not accurate. But the essence of the district court's ruling was that by meeting this relevancy standard the evidence invaded the province of the jury.
Dr. Moeller's testimony, as proffered by Lansford's counsel, discussed the issues of alcoholism and confabulation in the abstract without any specific reference to Lansford. Lansford's confessions were the State's most compelling evidence against Lansford. The validity of Lansford's statements was the most hotly disputed issue in the trial. In his proffer, Lansford's counsel made clear that Dr. Moeller's “testimony is going to be in the hypothetical realm. He's not going to opine on the credibility of Mr. Lansford or the reliability of any statements made by Mr. Lansford.” Indeed, in his proffered testimony Dr. Moeller never specifically linked his observations regarding confabulation to Lansford or to the issue of the veracity of the statements Lansford made in his confessions. Certainly, the testimony was predicated on facts consistent with Lansford's condition and circumstances, but to do otherwise would render his testimony irrelevant.
Accordingly, under the standards discussed earlier from Ward, we must conclude that the district court's finding that Dr. Moeller's testimony would not be helpful is not supported by the evidence and that the district court's conclusion that Dr. Moeller's testimony invaded the province of the jury is based on a faulty legal premise. The district court erred in excluding Dr. Moeller's testimony. We must reverse Lansford's convictions and remand to the district court for a new trial.
Remaining Issues
Because we find it necessary to remand this case for a new trial, we need not consider most of the remaining claims of trial errors raised by Lansford.
One of these claims by Lansford is that the district court erred in giving Instruction No. 11 on voluntary intoxication. Lansford requested a voluntary intoxication instruction and did not request any variation from the standard PIK instruction. The court gave an instruction consistent with PIK Crim.3d 54.12–A. Lansford's counsel stated that the court's instruction was appropriate. It appears that Lansford invited any claimed error with respect to this instruction. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011); State v. Schreiner, 46 Kan.App.2d 778, 788, 264 P.3d 1033 (2011), rev. denied 296 Kan. ––– (2013). We need not consider this issue further.
Lansford complains about the trial court's handling of jury questions. Because we cannot predict those issues arising in a retrial, we need not address them here. Besides, Lansford's counsel participated in drafting the answers to the two jury questions at issue, and so he will not be heard now to complain.
Lansford's complaint about the procedure the trial court used to take the jury's verdict has been answered in State v. Dunlap, 46 Kan.App.2d 924, 932–37, 266 P.3d 1242 (2011), rev. denied 279 Kan. ––– (2013). While the trial court's procedure did not follow K .S.A. 22–3421, any error was harmless.
Lansford raises an instruction error that we should address because of the likelihood of the issue arising again on retrial. He argues that the court erred in instructing the jury using PIK Crim.3d 54.01 (inference of intent) and 54.01–A (general criminal intent). Instruction No. 6 informed the jury that “the State must prove that [Lansford's] conduct was intentional. Intentional means willful and purposeful and not accidental.” Instruction No. 7 informed that jury: “Ordinarily, a person intends all of the usual consequences of his voluntary acts.”
Lansford argues that Instruction No. 6 should only be given if the crime requires a general criminal intent. He correctly states that the Kansas Supreme Court has held that this instruction, PIK Crim.3d 54.01–A, is not recommended for general use, and the instruction should not be given in a case where specific intent must be proven because the instruction “blurs general and specific intent.” State v. Ellmaker, 289 Kan. 1132, 1141, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010); see State v. Yardley, 267 Kan. 37, 42–43, 978 P.2d 886 (1999); State v. Mitchell, 262 Kan. 434, 442–43, 939 P.2d 879 (1997); State v. Isley, 262 Kan. 281, 293, 936 P.2d 275 (1997); State v. Plunkett, 261 Kan. 1024, 1032, 934 P.2d 113(1997). Accordingly, the Kansas Judicial Council, in its Notes on Use for PIK Crim.3d 54 .01–A, does not recommend use of the general criminal intent instruction in these circumstances. Aggravated indecent liberties with a child is a specific intent crime. While the instructions when read as a whole did not misstate the law applicable to the case, the better practice is for the trial court to refrain from using this instruction on retrial.
Lansford argues that Instruction No. 7, PIK Crim.3d 54.01, relieved the State of having to prove that he acted with the specific intent required by the aggravated indecent liberties statute. This argument was rejected in State v. Nelson, 291 Kan. 475, 482–85, 243 P.3d 343 (2010); Ellmaker, 289 Kan. at 1143–44;State v. Martinez, 288 Kan. 443, 452, 204 P.3d 601 (2009); State v. Stone, 253 Kan. 105, Syl. ¶ 1, 853 P.2d 662 (1993); and State v. Harkness, 252 Kan. 510, 525–27, 847 P.2d 1191 (1993). “As explained in the ... Notes on Use ..., the inference of intent instruction ‘is a rule of evidence and does not deal with the required element of criminal intent necessary for conviction in those cases where criminal intent is a necessary element of the offense.’ [Citations omitted.]” Ellmaker, 289 Kan. at 1143; see Nelson, 291 Kan. at 484–85. It was not error for the district court to provide the jury with PIK Crim.3d 54.01.
Because we cannot predict the outcome of any retrial, we will not address Lansford's sentencing issues.
Reversed and remanded for a new trial.