Opinion
No. 102,950.
2012-07-6
STATE of Kansas, Appellee, v. Felton WILLIAMS, Jr., Appellant.
Appeal from Reno District Court; Richard J. Rome, Judge. Richard Ney, of Ney & Adams, of Wichita, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Richard J. Rome, Judge.
Richard Ney, of Ney & Adams, of Wichita, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Felton Williams, Jr., was convicted of second-degree intentional murder for killing Kenneth White. Williams and others fled Hutchinson after the killing and headed south. Later that morning, they were stopped in Oklahoma by Oklahoma state troopers who conducted a search of Williams' car, found a stolen weapon in the glove box, and arrested Williams and his companions.
When White's body was found in Hutchinson later that afternoon, one of the investigating officers overheard a comment that a Hi–Point 9 mm pistol was missing from White's residence. The officer recalled hearing earlier in the day that the Oklahoma Highway Patrol had arrested three men from Wichita who had a Hi–Point 9 mm pistol in their possession. The gun had been reported stolen in Hutchinson.
As a result, two Hutchinson police officers went to Oklahoma where they interviewed Williams and his companions. During the course of those interviews, Williams confessed to killing White. Williams was returned to Kansas where he repeated his confession and was charged with White's murder.
Williams moved to suppress the evidence found in the Oklahoma car search, claiming the search was unlawful. In a later motion he sought to suppress his confession, claiming it was involuntarily made. The district court denied Williams' motions. Now, on appeal, Williams claims the district court erred in denying his suppression motions and in other rulings which we will discuss in detail. First we need to provide a more detailed history of the events leading to Williams' conviction. In doing so, we refer to the testimony at the suppression hearings because that was the testimony the district court relied upon in ruling on Williams' suppression motions.
Sunday Night and Monday Morning
White spent Sunday night, August 31, 2008, celebrating the Labor Day weekend with his family and friends. His brother, Denzel White, drove him home sometime between 5 a.m. and 6 a.m. on Monday morning. When Denzel left his brother's residence, White was lying on a couch watching television with a Hi–Point 9 millimeter pistol on the coffee table next to him.
First Police Encounter
At about 10:30 that morning, Oklahoma State Trooper Brandon Harmon stopped Williams for speeding on I–35 in Oklahoma. Williams was driving, and Ronald Beard was also in the front seat. Aubrey Oliver was asleep in the back seat of the vehicle.
Williams did not know the name of his back-seat passenger and knew only the first name of his front seat passenger. Although neither Beard nor Oliver had identification, Harmon ran checks on their names and dates of birth, and the record checks “came back clean.” Williams initially told Harmon that he was travelling to Guthrie, Oklahoma, but later told him that he was travelling to Oklahoma City (a short distance south of Guthrie on I–35) and was thinking about going to Dallas, which is further south on I–35.
Harmon noticed an odor of alcohol on Williams, but Harmon thought Williams was capable of safely driving a vehicle. Harmon did not smell any alcohol coming from the vehicle itself and did not observe alcoholic containers or illegal drugs in plain view. Harmon did detect an odor that he associated with Black and Mild cigars coming from the vehicle. In his experience, the cigars are sometimes used in association with marijuana. Harmon stated that Williams acted nervous in conversation. Harmon intended to conduct field sobriety tests on Williams, but his investigation was cut short when Harmon left to provide support for a fellow trooper who was pursuing another vehicle in the area. Harmon gave Williams a traffic citation and told him he was free to go.
Second Police Encounter
A short time later, Williams, who continued south on I–35, turned around and located Oklahoma State Trooper Gabe Leach whose patrol car was parked in the median facing south on I–35. Williams stopped on the northbound shoulder of the highway, went over to speak to Leach, and inquired about his driver's license, which Williams apparently thought Harmon had failed to return to him in the initial traffic stop. When Williams learned that Harmon did not have his license, he drove some distance north on I–35, then made a U-turn and continued south.
Third Police Encounter
Shortly after 11 a.m., Oklahoma State Trooper Todd Hatchett observed Williams' car exit the interstate about 2 1/2 miles south of where Williams had stopped to talk to Trooper Leach. Hatchett saw Williams' car run through the stop sign at the end of the exit ramp. Hatchett also noticed that the driver and the front passenger were not wearing seat belts. Hatchett realized the vehicle was the same one he had seen stopped near Trooper Leach a few minutes earlier. Hatchett initiated a traffic stop and approached Williams' car. He noticed the odor of alcohol coming from Williams.
Hatchett contacted Trooper Harmon and asked if he had tested Williams during the first stop, and Harmon responded that he had not. Williams denied drinking anything that day and told Hatchett that the odor of alcohol was from alcohol he had consumed the night before. Hatchett did not see any signs that Williams was under the influence of alcohol or drugs.
During the course of the stop, Williams kept insisting that he was running out of gas and needed to go and offered to have Hatchett look at the vehicle's fuel gauge to confirm this. Hatchett did not consider this an invitation to search the vehicle.
Troopers Harmon and Leach arrived on the scene. Harmon told Hatchett that he smelled Black and Mild cigars in the car and “guaranteed” that there were drugs in the vehicle. Hatchett then told Harmon that he was getting ready to search the vehicle or, in the alternative, Harmon could search the vehicle.
As the traffic stop was coming to an end, Hatchett asked Williams, “Do you guys have anything illegal in your vehicle?” When Williams said no, Hatchett asked if he could search the car. According to Hatchett, Williams replied:
“I am running on fumes. I'm going to the gas station. I'm going to go home. So I said okay. He said, I have been stopped three times, man.... I said, do you mind if we take a look? Uh. Yeah, I just want to go, man, and he—makes a gesture with both shoulders and right hand, pointing to his car like yes, go ahead.”
Williams did not provide Hatchett with an unequivocal verbal yes, but Hatchett understood from Williams' physical response, “[b]y his body language when I asked the question and he kind of shrugged his shoulder like this, pointed his hand skyward, right hand pointed to his car,” that he was giving Hatchett permission to search the car.
Hatchett immediately patted Williams down and ordered him to stand in the ditch. The other troopers assisted by patting down Beard and Oliver and instructing them to stand with Williams. During the search, Hatchett confiscated two firearms from the glove box of the vehicle, an H & K .40 caliber Smith & Wesson pistol and a High–Point 9 mm. A computer check of the serial numbers of the firearms revealed that the High–Point had been stolen. Williams, Beard, and Oliver were arrested for transporting a loaded firearm and taken into custody.
Discovery of the Homicide
Back in Hutchinson, at about 1 p.m. that same afternoon, Evan Graham called White's residence to remind him of an upcoming social event. When she was unable to reach him, she drove to White's house at about 3 p.m., where she found the back door open. She entered and found White's body. White had been shot twice. The first shot was to White's left thigh and went through his femur. The fatal shot was fired with the gun placed directly against the back of White's head. Some of the pockets in White's pants were turned inside out. The mattress on White's bed “had been kind of off the box springs.” An open gun case and another box were on the bed. Graham called White's brother, Denzel, who arrived shortly thereafter. Denzel noticed that the back door had been forced open. A flat screen television, the Hi–Point 9 mm pistol, a rifle, a set of keys, and a silver chain with a cross were missing.
Hutchinson police officers arrived and noted that the back door had been forced open. A shoeprint was visible on the outside of the door, and the molding around the doorframe was damaged. In the undisturbed pockets of White's pants the police found what appeared to be bags of marijuana, 1.77 grams of cocaine, and $670 in cash. Scales and packaging material consistent with selling drugs were found in White's kitchen.
Officer Tyson Myers was assisting with the processing of the crime scene when he overheard Sergeant Dean Harcrow mention that a Hi–Point 9 mm pistol was missing. Myers recalled that he had been working in the command center earlier that morning when he received a call from dispatch advising him that the Oklahoma Highway Patrol had arrested three men from Wichita who were found to be in possession of a Hi–Point 9 mm pistol that had been reported stolen from a Hutchinson residence 2 months earlier. The Hutchinson detectives followed up on this information and discovered that White had been living near the residence from which the 9 mm had been stolen.
Hutchinson Detective Bobby Holmquist contacted the Oklahoma Highway Patrol and spoke to Trooper Hatchett. Hatchett told Holmquist that the troopers also recovered a .40 caliber handgun in Williams' vehicle. Holmquist knew that .40 caliber shell casings had been found next to White's body. Hatchett indicated blood and brain matter had been found on the clothing of one of the men and on a handgun.
The Interrogations
The following day, September 2, 2008, Harcrow travelled with Hutchinson Police Detective Thad Pickard to the Stillwater, Oklahoma, Police Department to execute search warrants to seize the clothing and other items taken from Williams' vehicle and to interview Williams, Beard, and Oliver. Harcrow took the lead in the interrogations. Both officers were armed and wearing badges during the interrogations.
Harcrow first met with Oliver. Oliver denied knowing White and denied being in Hutchinson.
Harcrow next attempted to interview Beard, but Beard did not want to speak with him.
Then, about 24 hours after Williams' arrest, Harcrow sought to interview Williams. At that first interview, Williams was advised of his Miranda rights. Williams said he understood his rights and signed a waiver of those rights. Williams denied knowing anything about White's murder and denied being present in Hutchinson. Williams said he did not know anything about the guns confiscated from his car, and he denied that there was blood found on his pants. Williams admitted drinking and taking ecstasy pills on the night of August 31, 2008, which he claimed put him in a “blackout stage” of intoxication. Harcrow informed Williams that he would be in town for a couple of days and Williams could inform the deputies at the jail if he wished to speak with him again.
Oliver then agreed to speak with Harcrow. After waiving his Miranda rights, Oliver admitted being present in Hutchinson with Williams and Beard. Oliver stated that they went to White's house to smoke, drink, and “kick it.” They also went there to scare White. They went to the back of a residence and kicked in the back door. Oliver said that Williams shot White in the leg and, about 20 seconds later, shot White in the back of the head.
Harcrow and Pickard then spoke with Williams a second time at 6:50 p.m. that same day, September 2, when Williams told the jailers he wished to speak with them. The interview lasted about 26 minutes. This time, Williams admitted shooting White in the leg and in the head using a .40 caliber gun he found in his vehicle.
Harcrow interviewed Williams a third time on September 5, 2008, after Williams was transported back to Hutchinson. This interview was 4 days after Williams had been arrested in Oklahoma. Williams was again notified of his Miranda rights and he waived those rights and agreed to this third interview. The purpose of the interview was to determine if a fourth person, Michael Mack, was also involved in White's killing. Williams denied Mack's involvement, but he again admitted that he kicked in the back door to White's residence and shot White in the leg and in the head.
Additional Investigation
When Beard was arrested in Oklahoma, he had in his possession items meeting the description of White's silver chain and cross and White's set of keys. Forensic testing by the Kansas Bureau of Investigation tied the blood on Williams' pants and on the .40 caliber pistol to White's DNA profile. Forensic ballistic testing connected the two spent shell casings in White's home and the two bullets recovered from his body to the .40 caliber pistol.
Williams' vehicle was towed from Oklahoma to Kansas and searched a second time. The vehicle contained an aftermarket rear-viewing camera. Detective Pickard had heard the cameras referred to as “cop cams” and had previously noticed this type of camera system in vehicles of those involved in dealing drugs. A potato chip sack containing approximately 64 grams of cocaine was confiscated, as well as small pink baggies that Pickard thought were generally used to package drugs. A pair of boxer shorts was found in the truck of the vehicle and another pair was found in the rear passenger compartment. Williams said he used boxer shorts to cover his face when he entered White's house.
During the autopsy, a .40 caliber bullet was removed from White's sinus cavity and another .40 caliber bullet was removed from his left leg. Two Smith & Wesson .40 caliber spent shell casings were recovered at the scene. Later examination of the ammunition contained in one of the handguns revealed that it was the same type of ammunition and contained the same stamp filings as the spent shell casings found near White's body.
The Charges and Trial
Williams was charged with first-degree murder. Williams moved to suppress the items seized in the searches of his vehicle. He also moved to suppress his subsequent confessions to the Hutchinson police. After hearings on the motions, the district court denied them.
Oliver was also charged with first-degree felony murder. He pled guilty to the amended charge of conspiracy to commit first-degree murder in exchange for testifying truthfully at Williams' trial. At trial, Oliver testified inconsistently and stated that he could not remember many of the details that he provided to the officers during his interview.
Witnesses called by Williams testified they saw him drinking heavily during the night before the murder, to the extent that his speech was slurred and he had trouble standing during a party. According to his witnesses he was seen stumbling on the dance floor and sitting at the bar nodding off. When Williams left the bar when it closed at 2 a.m., he was stretched out in the back seat of a car that took him home. According to his girlfriend, Williams appeared to be still intoxicated at 7:30 the following morning, the morning of the homicide.
The jury found Williams guilty of the lesser included offense of intentional second-degree murder. Williams appeals his conviction.
The Suppression Motions
Williams claims the district court erred in denying his suppression motions. He argues the search was conducted in violation of the Fourth Amendment to the United States Constitution and any evidence seized as a result of the unlawful search, including his confession to the police, should be suppressed. He also contends his confession was the product of the illegal search and also should be suppressed because it was not voluntarily made.
On a motion to suppress evidence, we review the factual findings to determine if they are supported by a substantial competent evidence, and we review de novo the ultimate legal conclusion drawn from those findings. In doing so, we do not reweigh the evidence. State v. Walker, 292 Kan. 1, 5, 251 P.3d 618 (2010). The State bears the burden to prove the lawfulness of the search and seizure. State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010).
Whether probable cause existed to conduct a warrantless search of the vehicle is a question of law which we review de novo. State v.. Bickerstaff, 26 Kan.App.2d 423, 424, 988 P.2d 285,rev. denied 268 Kan. 889 (1999).
Choice of Laws
At the suppression hearing the State, relying on State v. Blood, 190 Kan. 812, 378 P.2d 548 (1963), claimed that Oklahoma law governed on whether the search and seizure was proper. The court agreed and announced it would apply Oklahoma law in determining the validity of the search of Williams' car. On appeal, the State concedes that Blood does not stand for the proposition that the standards for considering the constitutionality of a search and seizure under the Fourth Amendment to the United States Constitution depend upon in what state the search and seizure occurred.
Blood involved a burglary in Johnson County, after which the burglars fled into Missouri and were stopped and their car searched by a Missouri State Trooper. In considering the district court's denial of the defendant's suppression motion, the Kansas Supreme Court found that Missouri law was in tune with federal constitutional standards while Kansas law had yet to develop a line of cases consisting with emerging constitutional doctrine involving the Fourth Amendment. The analysis did not turn on where the search and seizure occurred because the federal constitutional standard applies throughout the nation. We will examine the district court's ruling in that light.
District Court Ruling: Search of Williams' Car
We have no journal entry memorializing the district court's ruling on the suppression motion regarding evidence taken from Williams' car. We do have, however, the district court judge's oral ruling from the bench at the conclusion of the evidentiary hearing. The judge ruled:
“[B]ased on the law that is cited by Mr. Schroeder [the prosecutor] in his argument, and I further find that—that these officers—these Oklahoma Troopers had probable cause to—to search the car on the reasons given by the State. I think they—they had the odor of alcohol. They had the—the admission that he had been—that Williams had been drinking. They had his demeanor, his body language. Uh, almost bizarre behavior on the highway. Apparently not knowing where he was going and stopped twice for—for no seatbelt and speeding ninety-two miles an hour down I–35 and running a stop sign down there by near the intersection of—of 35 and—and 51, I believe it is, Oklahoma 51. All of these circumstances gave these Troopers the right to—to search this vehicle. And—and they had probable cause, and I am going to [deny] the motion to suppress this evidence. I adopt the arguments and—the arguments and the citations given by the State in its closing argument as the reasons for the Court to make its decision.”
In summary, the facts determined by the district court at the evidentiary hearing which, according to the district court, support its ruling are:
• The troopers detected the odor of alcohol
• Williams admitted drinking
• Williams' demeanor, his body language
• Williams' almost bizarre behavior on the highway
• Williams did not know where he was going
• Williams was stopped twice; once for speeding and again for no seat belts and running a stop sign.
Because the district court adopted the arguments and cases relied upon by the State, we need to examine the State's position at the hearing.
The prosecutor spent considerable time at the suppression hearing eliciting testimony that Williams consented to the search. In his closing argument, the prosecutor pointed out various events during the course of the stop in which, according to the prosecutor, Williams consented to the search. But the prosecutor then argued:
“But, Judge, we can argue consent all we want all day long. It doesn't matter, either. We have wasted a lot of time talking about consent. Because the real issue is the fact that as a matter of law the officers had probable cause to search the vehicle. They didn't need consent. They didn't need to ask permission. They had probable cause to search this vehicle.
....
“... Judge, you have got all these factors you take into consideration. But I will tell you the one factor that just matters—the others, the others are just—just additional facts. The one factor that matters is the fact he had the odor of alcohol about him, Judge.”
The prosecutor then argued the application of Gomez v. State, 168 P.3d 1139, 1142–43 (Okla.Crim.2007), which, he contended, stood for the proposition “that if there is odor of alcohol, that gives an officer probable cause to search the vehicle for open containers.” He also argued that Kansas law is similar, as announced in Bickerstaff, 26 Kan.App.2d at 424. The prosecutor added:
“Judge, the bottom line is forget ... driving south and driving north and driving south and then running stop signs, not knowing the names of the people in your car, not knowing where you are going, slurred speech. Just the odor of alcohol in and of itself gave the Troopers authority to get in that car. They had probable cause. They didn't have to ask for consent. That gave them the probable cause, and where they were looking is a place where alcohol could be kept in a glove box. They find the guns in the glove box.”
In rebuttal the prosecutor concluded:
“The State's not saying there is probable cause to believe the defendant's driving under the influence of alcohol. We never said that.... The issue is whether or not the defendant had drank, illegal transportation of liquor, illegal consumption of liquor in a vehicle.”
Consent
The district court judge made no finding that Williams consented to the search. In its appellate brief the State makes no such argument. In oral argument before us, the State conceded that it has abandoned the issue of consent. This may be because “[a] consent to search must be unequivocal and specific.... It must be clear that the search was permitted or invited by the individual whose rights are in question without duress or coercion.” State v. Dwyer, 28 Kan.App.2d 238, Syl. ¶ 3, 14 P.3d 1186 (2000), rev. denied 270 Kan. 900 (2001). Further, merely submitting to lawful authority does not equal a finding of consent. State v. Parker, 282 Kan. 584, 595–96, 147 P.3d 115 (2006). Williams' verbal response does not appear to have provided the unequivocal and specific response that was necessary to consent to the search. Finally, it does not appear that the traffic stop had turned into a consensual encounter. Hatchett never informed Williams that he was free to leave before asking for consent to search the vehicle. Thus, as invited by the parties, we will disregard the consent issue and look to the record to determine if, based upon the facts found by the district court, there was probable cause justifying the search without Williams' consent.
Probable Cause to Search Williams' Car?
The Fourth Amendment to the United States Constitution protects the public from warrantless searches by the government. Under the Fourth Amendment, individuals have the right to be free from unreasonable governmental searches and seizures. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). Evidence obtained as the result of an unconstitutional search is inadmissible and must be suppressed. Wong Sun v. United States, 371 U.S. 471, 484–87, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
A traffic stop is a seizure within the meaning of the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). There is no challenge here to the validity of Trooper Hatchett's stop of Williams' car for running the stop sign while exiting the interstate.
A warrantless search violates the Fourth Amendment unless a recognized exception applies. One of the long-accepted exceptions to the search warrant requirement is the district court's basis for its ruling in this case, the combination of probable cause plus exigent circumstances. State v. Fitzgerald, 286 Kan. 1124, 1127, 192 P.3d 171 (2008). The United States Supreme Court has recognized that an automobile, because of its mobility, may be searched without a warrant when there is probable cause. See Chambers v. Maroney, 399 U.S. 42, 48–52, 90 S.Ct. 1975, 26 L.Ed. 419 (1970). As stated in Fitzgerald:
“Probable cause is the reasonable belief that a specific crime has been committed and that a specific person committed it. Probable cause exists when the facts and the circumstances within a law enforcement officer's knowledge and about which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed. When determining whether probable cause exists, an appellate court considers the totality of the circumstances, including all of the information in the officer's possession, fair inferences therefrom, and any other relevant facts, even if they may not be admissible on the issue of guilt State v. Abbott, 277 Kan. 161, Syl. ¶ ¶ 2, 3, 83 P.3d 794 (2004). Evidence of probable cause need not reach the level necessary to prove guilt beyond a reasonable doubt, but it must constitute more than mere suspicion. [Citation omitted.]” 286 Kan. at 1128.
Under our standard of appellate review, we review the factual findings underlying the district court's suppression decision to determine if they are supported by substantial competent evidence, and we consider de novo the ultimate legal conclusion the district court has drawn from those factual findings. Walker, 292 Kan. at 5.
Here, the district court adopted the State's theory that the troopers had probable cause to search Williams' vehicle for an open container of alcohol. The district court based this conclusion on Williams' admitted drinking, his not knowing where he was going, and the court's generalized finding of “his demeanor, his body language ... [and] almost bizarre behavior on the highway,” and his being stopped for a traffic infraction, an event often associated with an alcohol-related offense. In doing so, the district court apparently disregarded the fact that neither trooper involved in the search testified that the purpose of the search was to find an open container of alcohol.
The State suggests that other facts developed in the testimony support the district court's probable cause determination. But the problem is that none of those facts were found by the district court, and as an appellate court we do not engage in our own factfinding. For example, the State cites the testimony of Trooper Harmon that he smelled the odor of Black and Mild cigars in Williams' vehicle, which he associated with marijuana use. The district court made no finding regarding this testimony and based its ruling on the evidence of an alcohol-based crime. Thus, we must confine our analysis to the factual basis established by the district court, and we may not consider the odor of Black and Mild cigars as a factor justifying the search of Williams' car.
Our first task is to determine whether substantial competent evidence supports the district court's factual findings that
• The troopers detected the odor of alcohol
• Williams admitted drinking
• Williams' almost bizarre behavior on the highway
• Williams' demeanor and his body language
• Williams not knowing where he was going
• Williams being stopped twice; once for speeding and again for no seat belts and running a stop sign.
We then must consider whether the district court correctly concluded from the evidence that the facts provided the troopers with probable cause to search the car for an open container.
There is certainly evidence that the troopers detected the odor of alcohol eminating from Williams, that he admitted drinking, that he identified several destinations for his trip, and that he was given tickets for traffic infractions. The finding of bizarre behavior relates to testimony about Williams turning around on I–35 to locate the trooper to attempt to retrieve his missing driver's license that had been taken at the time of his first encounter with the troopers.
With respect to Williams' demeanor and his body language, the district court did not specify what demeanor or body language. Because the district court heavily relied on the prosecutor's arguments, we turn to those arguments at the hearing. With respect to the issue of consent, the prosecutor referred to the trooper's testimony about “the inflection of the voice ... the defendant's demeanor and body language suggesting he had no objection to the search.” Of course, that evidence is no longer material because the State has abandoned the consent issue.
The prosecutor then argued that when Williams was stopped he “appears nervous. He kept repeating himself.” “You have what could be mumbling, rambling, slurred speech.... [T]he fact he was unable to—to follow simple directions, such as put your seatbelt on.” This, of course, was before the prosecutor admonished the court that “[t]he one factor that matters is the fact he had the odor of alcohol about him, Judge.” But for purposes of our analysis, we presume that the demeanor the court referred to in its findings was Williams' demeanor argued by the prosecutor.
While there is some evidence to support these various findings, the threshold issue is whether this evidence is substantial; that is, whether the evidence possesses both relevance and substance so as to provide a substantial basis of fact from which the issues can reasonably be determined. Specifically, substantial evidence refers to legal and relevant evidence 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).
Odor of Alcohol
On appeal, as it did at the suppression hearing, the State relies heavily on the holdings in Gomez and Bickerstaff as support for the proposition that the odor of alcohol coming from Williams' person alone gave the troopers probable cause to search his vehicle. In Gomez, the officer saw the defendant swerve over the center line, smelled the odor of alcohol coming from the vehicle, and observed two six-packs of beer within the defendant's car, with one bottle missing from one of the six-packs. Under these circumstances, the Oklahoma Court of Appeals held that the officer had sufficient probable cause to search the car for an open container of alcohol. 168 P.3d at 1141–42.
The Gomez court relied on State v. Schuette, 423 N.W.2d 104, 106 (Minn.App.1988), in which the Minnesota Court of Appeals held that an officer's detection of the odor of alcohol emanating from an car constitutes probable cause to search the car for an open container.
In Bickerstaff, 26 Kan.App.2d 426, Syl., a panel of this court found that the odor of alcohol emanating from the inside of a vehicle, combined with evidence that the driver was impaired, gave the officers probable cause to search the vehicle's interior for an open container. The Bickerstaff court relied on the fact that the odor of alcohol was coming from the defendant's vehicle as well as her person. Further, the defendant failed both a field sobriety test and an alcohol breath test, yet the defendant denied drinking. The court found the combination of factors gave the officers probable cause to believe that an open container was in the vehicle. 26 Kan.App.2d at 423–25.
The facts of this case do not align with those of Gomez and Bickerstaff. Here, the troopers smelled alcohol on Williams' person while he sat in their patrol cars rather than from the interior of the vehicle. The troopers did not smell any alcohol in Williams' vehicle, and they did not observe any open containers in the vehicle. Although there was some discussion of field sobriety testing, both troopers testified that they did not believe that Williams was under the influence of alcohol or incapable of driving his vehicle safely. See State v. Carson, No. 101,242, 2009 WL 1591933, at *4 (Kan.App.2009) (unpublished opinion) (distinguishing Bickerstaff because the odor of alcohol was coming from the defendant's person rather than the vehicle and the officer stated that he did not suspect any illegal activity after defendant passed the field sobriety tests). Under the facts of this case, the odor of alcohol did not provide the troopers with probable cause to search Williams' vehicle for an open container.
Admitted Drinking
In Williams' third encounter with the authorities that day, he told Trooper Hatchett that he had nothing to drink that day but had imbibed the night before. It is not a crime to drive an automobile after consuming alcohol. State v. Wahweotten, 36 Kan.App.2d 568, 589, 143 P.3d 58 (2006), rev. denied 283 Kan. 933 (2007). Hatchett testified he did not see any sign that Williams was under the influence of alcohol. Neither did any of the other troopers who had contact with Williams. Further, the odor of alcohol came from Williams' person, not from inside the car. Thus, Williams' admission of drinking the night before did not lead to a conclusion that the source of the odor could be an open container in the car that would justify a search of the car.
Bizarre Behavior
The bizarre behavior cited by the prosecutor was Williams turning around on I–35 and returning north to make contact with Trooper Leach to inquire about his driver's license. When Leach was unable to provide any information on the whereabouts of Williams' license, Williams continued on north on I–35 to a point where he could turn around and continue his journey south. Under the circumstances, actively seeking out law enforcement may evidence a degree of chutzpah, but it does not seem to evidence a guilty mind. But in any event it is not a fact that lends support for the notion that Williams may be carrying an open container of alcohol in his automobile.
Demeanor and Body Language
Body language was discussed with reference to the issue whether Williams' consented to the search. But the State abandoned that theory. But the district court apparently adopted the State's argument that when Williams was stopped he appeared nervous; kept repeating himself; and mumbled, rambled, and slurred his speech. We will discuss the prosecutor's reference to Williams not using his seat belt below. But nervousness alone is not enough to form reasonable suspicion; it must be coupled with other factors. See State v. DeMarco, 263 Kan. 727, 739–41, 952 P.2d 1276 (1998). Not only those guilty of a crime feel nervous when stopped by the police. Williams' initiating his second contact with the troopers that day seems to vitiate any suspicion that his nervousness was the product of a guilty conscience, a desire to hide evidence of a crime, or a fear of apprehension.
Trooper Harmon testified that Williams stammered, mumbled, and slurred his speech. But he also acknowledged that he was able to communicate with Williams appropriately and did not have to ask him to repeat himself. In any event, probable cause requires a reasonable belief that a specific crime has been or is being committed, not merely a generalized suspicion that the defendant must be up to no good. The troopers did not testify that there was something about Williams' demeanor that led them to believe that he had an open container of alcohol in his car. The State makes no effort on appeal to link Williams' demeanor to the basis for the search. Under the circumstances, there is no link to make. No testimony was presented at the suppression hearing that the troopers thought there was an open container in the car. Williams' demeanor would not cause a reasonable person to suspect that Williams had an open container in his vehicle.
Inconsistent Statements of Travel Plans
In the first traffic stop Williams told Harmon he was going to Guthrie, Oklahoma, but later told him that he was going to Oklahoma City, further south of Guthrie on I–35, and was thinking about going to Dallas, yet further south on I–35. Unusual travel plans or inconsistent information can, in combination with other factors, contribute to reasonable suspicion justifying further police investigation. See State v. Morlock, 289 Kan. 980, 994–95, 218 P.3d 801 (2009). But while reasonable suspicion may support further police investigation, it does not support the search of Williams' car. Reasonable suspicion is a less demanding standard than probable cause which is needed to support a search.
Absent a consensual extension of a traffic stop, further questioning is permissible only if during the stop the law enforcement officer gains a reasonable and articulable suspicion that the driver is engaged in illegal activity. State v. Moore, 283 Kan. 344, 354, 154 P.3d 1 (2007). Although this is a less demanding standard than probable cause, the Fourth Amendment requires a minimum level of objective justification. The officer must be able to articulate more than an “inchoate and unparticularized suspicion” or more than a mere “hunch” of criminal activity. 283 Kan. at 354. An investigatory detention must be supported by specific and articulable facts which raise a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. See K.S.A. 22–2401(1); State v. Morris, 276 Kan. 11, 24, 72 P.3d 570 (2003).
To repeat, probable cause requires a reasonable belief that a specific crime has been or is being committed. Fitzgerald, 286 Kan. at 1128. A reasonable person hearing Williams describe three different possible destinations, each one further south on I–35 than the last, would not form the belief based upon those statements that Williams probably had an open container in his car.
Multiple Stops for Traffic Offenses
The district court found that the two traffic stops—once for speeding and later for running a stop sign and not wearing seat belts—provided probable cause for the search. “Evidence of probable cause need not reach the level necessary to prove guilt beyond a reasonable doubt, but it must constitute more than mere suspicion. [Citation omitted.]” Fitzgerald, 286 Kan. at 1128. Traffic offenses, such as running of a stop sign in the middle of the day, do not favor the State in its quest to show probable cause. “The running of the stop sign is neutral on the question of whether probable cause to search the truck for drug evidence existed .” 286 Kan. at 1130. Once again, the State makes no effort to connect these traffic offenses to a reasonable belief that Williams had an open container in his car.
We conclude that the district court's findings do not support the conclusion that the Oklahoma troopers had probable cause to search Williams' vehicle. The physical evidence seized in the course of the search should have been suppressed.
The Exclusionary Rule—Williams' Confessions
The search of Williams' car led to the discovery of two guns, one of which was the weapon used to kill White. The discovery of the weapons caused the Hutchinson police to travel to Oklahoma to interview the three suspects, during which Williams confessed to the crime. Williams repeated his confession several days later after he had been transported back to Kansas.
Generally, any evidence seized, either directly or indirectly, from an unreasonable search and seizure cannot be used against the defendant in a criminal prosecution. See Herring v. United States, 555 U.S. 135, 139–40, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009); Wong Sun, 371 U.S. at 487–88. “The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion .” 371 U.S. at 485. But a confession need not be suppressed if the connection between the search and a later confession was “so attenuated as to dissipate the taint.” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939).
Whether a defendant's confession must be suppressed as fruit of an illegal search depends on whether the confession was obtained “by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S. at 488. Under the attenuation doctrine, our Supreme Court has held that the poisonous taint of unlawful activity dissipates when the connection between the unlawful police conduct and the challenged evidence becomes attenuated. State v. Martin, 285 Kan. 994, Syl. ¶ 3, 179 P.3d 457,cert denied555 U.S. 880 (2008).
Williams filed two separate motions to suppress evidence obtained following the search of his car. Williams claimed in his first suppression motion that all evidence “verbal or otherwise” resulting from the illegal search of his car should not be admitted into evidence. But Williams' counsel advised the court at the hearing that “we filed the Motion to Suppress in this case, specifically asking the court to quash the stop, the search, the seizure of Mr. Williams' person as well as the vehicle that he was driving, the 2000 Cadillac.” Williams' counsel did not raise any issue regarding Williams' confessions. The issue of Williams' confessions was not litigated at the hearing on the first suppression motion, and the district court did not include it in its ruling.
Over 2 weeks after he filed his first motion, Williams filed his second suppression motion, this one specifically directed to his confessions. In this second motion Williams did not base his argument on the application of the exclusionary rule for evidence obtained by an illegal search. He made no reference to it. His sole argument related to the voluntariness of the confessions.
The evidentiary hearing on Williams' second suppression motion was held over 2 weeks after the hearing on his first motion. The State's witness was Detective Harcrow of the Hutchinson Police Department, who testified about his interviews of Williams. There was no mention of the original search of Williams' car in his direct or cross-examination testimony. On cross-examination, Williams' counsel unsuccessfully attempted to raise an issue about a later search of Williams' car after it was returned to Kansas. But there was no reference to the original traffic stop and car search.
Williams testified at the hearing about the copious amounts of liquor and drugs he consumed over the Labor Day weekend and prior to his arrest. He did not testify to any of the events leading to the initial search of his car. He claimed his confessions were involuntary because he was under the influence of drugs and alcohol. When the State inquired about Williams' statements to the Oklahoma troopers at the time of the traffic stop in which he denied he had consumed any alcohol that day, Williams' counsel objected, “Judge, getting outside the scope of direct at this point. I focused my direct simply on the amount of alcohol he consumed, excuse me, and whether or not the statements were voluntarily made.... Does not deal with veracity of the statements, judge.” The court permitted the State to inquire about Williams' prearrest conduct to demonstrate that he was not intoxicated at the time. In closing, the State confined its argument to the voluntary nature of Williams' confession, never contending that the search that led to Williams' arrest and confession was a lawful search. In her closing argument, Williams' counsel argued the involuntary nature of the confessions but never contended that the confession was the product of an illegal search.
Now on appeal, and for the first time, Williams cites State v. Hill, 281 Kan. 136, 130 P.3d 1 (2006), and State v. Kirby, 12 Kan.App.2d 346, 744 P.2d 147 (1987), aff'd242 Kan. 803, 751 P .2d 1041 (1988), for the proposition that a confession obtained as a result of an illegal arrest or an illegal search should be suppressed absent sufficient attenuation between the illegal police conduct and the confession. Williams claims the district court erred in not sustaining his suppression motion to bar admission of his confessions at trial.
But a party cannot lay in the weeds, not raise an issue before the trial court, and then claim on appeal that the trial court erred in not sustaining a motion on grounds never presented to the trial court. Claims such as this asserted for the first time on appeal are not properly before us for review. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). The exclusionary rule is a prudential doctrine, not a personal constitutional right. Davis v. United States, 564 U.S. ––––, 131 S.Ct. 2419, 2427–28, 180 L.Ed.2d 285 (2011). But even if we were to consider it to be of constitutional magnitude, the issue still may not be raised for the first time on appeal. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010).
There are several exceptions to the rule in Gomez: (1) when the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) when consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights; or (3) when the judgment of the trial court may be upheld on appeal as being right for the wrong reason. 290 Kan. 858, Syl. ¶ 2.
“[I]t is necessary for the party raising the constitutional issue to satisfy one of the three recognized exceptions to the general rule.” State v. McCullough, 293 Kan. 970, 998, 270 P.3d 1142 (2012). Williams does not claim on appeal that any of these exceptions applies. Nevertheless, we will examine the issue.
Considering the Gomez exceptions in reverse order, exception (3) clearly does not apply. No one contends that the district court was correct in not suppressing the confessions but based its decision on the wrong reasons.
Exception (2) presents an exercise in circular reasoning. We cannot consider a newly raised claim unless its consideration is necessary to serve the ends of justice or to prevent denial of fundamental rights. Such a determination necessarily requires us to consider the very claim we are trying to decide whether we should consider. But in State v. Ortega–Cadelan, 287 Kan. 157, 160, 194 P.3d 1195 (2008), the court noted several circumstances in which an analysis under exception (2) would be appropriate. Based upon the record before us, we do not find any of those circumstances here.
Exception (1) applies when the newly asserted issue involves only a question of law arising on proved or admitted facts and is finally determinative of the case. Here, the question is whether the exclusionary rule should apply to bar the admission into evidence of two confessions Williams made to the Hutchinson police: the first confession on the day after Williams' arrest, and the second confession 4 days after Williams' arrest when he was transported back to Kansas from Oklahoma.
In discussing the exclusionary rule that ordinarily applies to “fruit of the poisonous tree,” the court stated in Davis, 131 S.Ct. at 2426–27:
“The Fourth Amendment protects the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Amendment says nothing about suppressing evidence obtained in violation of this command. That rule—the exclusionary rule—is a ‘prudential’ doctrine.... [Citations omitted.] Exclusion is ‘not a personal constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an unconstitutional search. [Citations omitted.] The rule's sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations. [Citations omitted.] Our cases have thus limited the rule's operation to situations in which this purpose is ‘thought most efficaciously served.’ [Citation omitted.] Where suppression fails to yield ‘appreciable deterrence,’ exclusion is ‘clearly ... unwarranted.’ [Citation omitted.]
“Real deterrent value is a ‘necessary condition for exclusion,’ but it is not ‘a sufficient’ one. [Citation omitted.] The analysis must also account for the ‘substantial social costs' generated by the rule. [Citation omitted.] Exclusion exacts a heavy toll on both the judicial system and society at large. [Citation omitted.] It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. [Citation omitted.] And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. [Citation omitted.] ... For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs. [Citations omitted.]”
As stated in State v. Hodges, 252 Kan. 989, 1006, 851 P.2d 352 (1993) (quoting Wong Sun v. United States, 371 U.S. 471, 487–88, 83 S.Ct. 407, 9 L.Ed.2d 441 [1963] ):
“ ‘We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt questions in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Maguire, Evidence of Guilt, 21 (1959).’ “
In State v. Knapp, 234 Kan. 170, 671 P.2d 520 (1983), the district court found that there was sufficient attenuation between an illegal arrest and the defendant's subsequent confession to render the confession admissible. Knapp, a staff sergeant in the Army, was illegally detained by military police in Arizona and held overnight for questioning by agents of the Kansas Bureau of Investigation regarding the murder of his wife. The district court found, and the Supreme Court agreed, that the attenuation doctrine saved evidence obtained as a result of the illegal detention. The court reasoned that the Kansas authorities had no part in Knapp's arrest and did not seek to have him arrested. Knapp was not coerced in any manner. He was fully advised of his rights and understood them. Further, the military police acted in good-faith reliance on advice that their detention procedure was proper under military law. In ruling that attenuation had occurred, the court noted an observation by Justice Powell:
“The basic purpose of the rule, briefly stated, is to remove possible motivations for illegal arrests.... If an illegal arrest merely provides the occasion of initial contact between the police and the accused, and because of time or other intervening factors the accused's eventual statement is the product of his own reflection and free will, application of the exclusionary rule can serve little purpose.' “ 234 Kan. at 178 (quoting Brown v. Illinois, 422 U.S. 590, 610, 95 S.Ct. 2254, 45 L.Ed.2d 416 [1975] [Powell, J., concurring in part] ).
In Knapp the trial court reached its conclusion after full inquiry into the applicability of the exclusionary rule. The four factors to be considered when determining whether a defendant's confession following an illegal arrest is admissible are: (1) whether Miranda warnings were given; (2) the proximity of the illegal arrest and the statement or confession; (3) the purpose and flagrancy of the officer's misconduct; and (4) other intervening circumstances. Hill, 281 Kan. at 153; see Martin, 285 Kan. at 1003.
In Williams' case, the trial court made no such analysis. At the conclusion of the hearing, the judge simply announced, “I find that from the totality of the circumstances that the, this confession, or confessions were voluntary and would overrule the motion to suppress .”
Elements (2), (3), and (4) found in Hill are particularly troubling because of they are so fact intensive and the district court made no applicable findings of fact. Thus, it is impossible to apply Gomez exception (1) to consider the unpreserved issue regarding application of the exclusionary rule to Williams' two confessions because resolution of the issue turns on as yet undetermined facts. Williams told his Oklahoma jailers he wanted to talk to Harcrow and Pickard before they returned to Kansas. It was then that he made his first confession. He made a second confession 4 days after he was arrested and after he had been transported back to Kansas. There has been no determination of the intervening events. Those intervening events are matters of fact that are for resolution by the trial court, not the appellate court on appeal.
With respect to the conduct of the Oklahoma troopers at the scene of the arrest and search, the district court ruled on the first suppression motion based on the theory advanced by the State but which was inconsistent with the basis advanced by the troopers in their testimony. Consequently, to consider Gomez exception (1) we would have to engage in fact finding that is the province of the trial court, not us.
Finally, we have no information one way or the other whether the Hutchinson police would have connected Williams to White's death but for the illegal search of Williams' car and the seizure of the gun. See Wong Sun, 371 U.S. at 487–88.
We conclude that Williams' newly asserted claim does not involve only issues of law arising from proved or admitted facts. Thus, Gomez exception (1) does not apply. Even if Williams had claimed an exception to the rule that we do not consider newly raised issues on appeal, we are satisfied that none of the recognized exceptions applies. Accordingly, we will not consider this newly asserted claim on appeal.
Though the application of the exclusionary rule to Williams' confessions has not been preserved for appeal, the basis for barring admission of Williams' confessions asserted before the district court was that the confessions were involuntarily made. We now turn to that issue.
District Court's Ruling: Williams' Confessions
Williams argues that his statements and confessions to law enforcement following the illegal search of his car were not voluntary and violated the Fifth Amendment to the United States Constitution. He asserts the district court erred in denying his motion to suppress these statements. In the 16 lines of discussion of this issue in its appellate brief, the State provides no meaningful analysis.
In reviewing a district court's ruling on a motion to suppress a confession, we review the record to determine if the court's factual findings are supported by substantial competent evidence. We review de novo the district court's ultimate legal conclusion drawn from those facts. In doing so, we do not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. Edwards, 291 Kan. 532, 545, 243 P.3d 683 (2010).
The State has the burden to prove the voluntariness of a confession by a preponderance of the evidence. 291 Kan. at 545. The court looks at the totality of the circumstances surrounding the confession and determines its voluntariness by considering the following nonexclusive factors:
“ ‘(1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request 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.’ [Citation omitted.]” State v. Johnson, 286 Kan. 824, 836, 190 P.3d 207 (2008).
The district court held an evidentiary hearing and reviewed the videotape recordings of the interrogations. Williams testified that he was too intoxicated from the alcohol and drugs that he consumed to have voluntarily signed the waiver of Miranda rights. Williams further testified that even though he was no longer feeling the effects of intoxication during the third interview, which was many days after the crime, he claimed his statements were not voluntary because of the information he had disclosed in previous interviews.
On appeal, Williams also argues that his confession was involuntary because he was repeatedly threatened and coerced by the detectives and the detectives misrepresented the evidence. Williams complains about the following statements: Pickard told Williams that the decisions you make will “affect you for the rest of your life.” He also told Williams that “you're going to work with us, or you're not going to work with us.... I want to go to the DA ... and be able to tell them, you know what, he's a stand up guy .” Pickard then talked to Williams about how taking a plea would affect Pickard talking to the DA. Pickard stated, “[I]f you're not going to work with us, we're not going to work with you.” Pickard also stated that if Williams was not going to work with the detectives, then “we're going to want a trial in this case” and “[i]f you're not going to work with us we're going to go to the DA and say that ... you were not honest.” Harcrow then told Williams that he did not want to see him go to prison for 40 years and that “we can work out these charges here in Oklahoma.” Williams characterizes these statements as “clear threats.” He cites State v. Banks, 260 Kan. 918, 925, 927 P.2d 456 (1996), for the following rule of law:
“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, the promise must be such as would likely cause the accused to make a false statement to obtain the benefit of the promise, and the promise must be made by a person whom the accused reasonably believed to have the power or authority to execute it. State v. Norris, 244 Kan. 326, Syl. ¶ 6, 768 P.2d 296 (1989).”
However, as in Banks, there is no evidence of such a promise or benefit in this case.
Williams also complains that the detectives repeatedly lied to him about the evidence and the cooperation of his codefendants. Police are free to lie about evidence, but it is a factor to be considered, in conjunction with others, when determining the fairness of the officers in conducting the interrogation. See Johnson, 286 Kan. at 836;State v. Swanigan, 279 Kan. 18, 32, 106 P.3d 39 (2005).
Williams has not raised any alarming issues which would render his confessions involuntary under the factors identified in Johnson, 286 Kan. at 836. Under the totality of the circumstances, and in light of the factors relevant to voluntariness, there is sufficient competent evidence to support a finding of voluntariness. The district court correctly ruled that Williams' statements were the product of his free and independent will.
Admission of Drug Evidence at Trial
Williams argues that drug evidence and other evidence relating to his prior bad acts were erroneously admitted at trial, constituting reversible error. The State argues the drug evidence was relevant to establish Williams' motive in shooting White.
In considering whether such evidence is admissible under K.S.A. 60–455, the trial court must first determine whether the evidence is relevant to prove a disputed material fact such as intent, motive, knowledge, or identity. On the issue of materiality, we review the trial court's ruling de novo. On the issue of relevancy, we review the district court's ruling using the abuse of discretion standard. If the evidence is relevant to prove a disputed material fact, the trial court must determine whether the probative value of the evidence outweighs its prejudicial effect. We examine the trial judge's ruling on this point using the abuse of discretion standard. If the trial court admits the evidence, it then must give the jury a limiting instruction identifying the specific purpose for admission of this evidence. State v. Riojas, 288 Kan. 379, 383, 204 P.3d 578 (2009).
Here, the district court gave a limiting instruction informing the jury that it could only consider the prior crimes evidence to prove Williams' motive. But it is undisputed that the district court failed to specifically address any of the factors in ruling that the evidence was admissible either at the hearing on the State's motion in limine or at trial. In State v. Gunby, 282 Kan. 39, 57, 144 P.3d 647 (2006), our Supreme Court stated that a district court's failure to follow its protocol for analyzing the admissibility of such evidence and to give a limiting instruction is error, although it may be harmless error. Here, the district court failed to undertake the proper analysis in admitting the evidence under K.S.A. 60–455.
Motion for a Continuance
Williams argues the district court erred in denying his motion for a continuance to investigate purportedly exculpatory evidence. We consider this claim using the abuse of discretion standard. State v. Carter, 284 Kan. 312, 318, 160 P.3d 457 (2007). The evidence that Williams points to is blood found on Beard's shoe. But it is undisputed that Beard was standing near White when Williams shot him. Thus, a spot of blood on his shoe would be expected and is not viewed as exculpatory evidence warranting a continuance. We find no abuse of discretion in the district court denying this motion.
Prosecutorial Misconduct
Williams argues that he was denied his right to a fair trial by several instances of the State's misconduct. Because we are remanding the case to the district court for a retrial, these issues are moot. But because they are issues that may resurface during the retrial, we will consider them.
We review this issue using a two-step analysis. First, we consider whether the prosecutor's conduct was proper and within the latitude allowed the prosecutor. If we find misconduct, we then determine whether the conduct requires us to reverse the case. In doing so, we consider (1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors, State v. Inkelaar, 293 Kan. 414, 427, 264 P.3d 81 (2011), and State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004), or whether the error “affected the outcome of the trial.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
The State generally denies any misconduct but provides no argument as to the specific instances alleged by Williams.
As to Williams' assertions of evidentiary error, some of the questions or comments were objected to and some of them were not. A contemporaneous objection must be made to preserve an evidentiary claim for appeal, including objections to questions a prosecutor poses to a witness. See K.S.A. 60–404; State v. Shadden, 290 Kan. 803, 835, 235 P.3d 436 (2010). A contemporaneous objection is not required to address Williams' assertion of prosecutorial misconduct during closing argument. See State v. Bennington, 293 Kan. 503, 530, 264 P.3d 440 (2011).
Cross-examination of LaShira Williams
Williams claims the prosecutor engaged in misconduct in LaShira Williams' cross-examination. Williams preserved the issue with a timely objection to the prosecutor's questions. Williams claims the prosecutor repeatedly asked the witness whether Williams generally carried a gun and whether she saw him with a large amount of cocaine. Williams' use of the word “repeatedly” is a mischaracterization of the record. The prosecutor asked the questions a couple of times due to the interjection of Williams' objections. After the court overruled Williams' objections, the witness denied that Williams generally carried a gun and also denied seeing Williams with a large amount of cocaine. Williams also claims the prosecutor asked the witness to divulge the “gang nicknames” of Beard and Oliver, in direct violation of the court's order in limine. This is also a mischaracterization of the record. The prosecutor did not refer to a gang when asking LaShira if she knew Beard and Oliver by any other names.
Williams relies on State v. Quick, 229 Kan. 117, 122, 621 P.2d 997 (1981), and State v. Lewis, 27 Kan.App.2d 380, 384, 5 P.3d 531 (2000), to support his allegation of prosecutorial misconduct. However, the issues addressed in both Lewis and Quick were evidentiary rulings regarding the admissibility of evidence under K.S.A. 60–447 and K.S.A. 60–455. In neither case did the appellate court engage in an analysis of prosecutorial misconduct. Williams has not raised an evidentiary issue regarding the district court's ruling under K.S.A. 60–447. And we have already addressed Williams' assertions that certain evidence of prior bad acts was improperly admitted.
Under a prosecutorial misconduct analysis, the prosecutor's inquiry regarding whether LaShira knew Beard and Oliver by any other name does not constitute prosecutorial misconduct. Despite Williams' assertion that the prosecutor elicited testimony from LaShira about the codefendants “gang nicknames,” the prosecutor made no actual reference to gangs or their association with gangs during this line of questioning. The question was limited merely to whether LaShira knew the men by any other names. Williams' objection to this line of questioning was made in reference to the order in limine and not on the basis of relevance.
However, we hold the prosecutor committed misconduct by asking LaShira if Williams “commonly” carried a gun and further inquiring whether she saw Williams with a “large amount of cocaine.” But such misconduct does not require reversal. Although the line of questioning could have prejudiced Williams in the eyes of the jurors by connecting him to criminal activity, Williams' confession to shooting White with a gun is evidence of such a direct and overwhelming nature that the improper line of questioning would likely have had little weight in the minds of the jurors. See Inkelaar, 293 Kan. at 427.
Closing Argument
Next, Williams complains that the State committed numerous instances of prosecutorial misconduct during closing argument. Williams complains the prosecutor improperly: (1) referred to this case as “cold-blooded business”; (2) argued that Williams showed no remorse; (3) referred to the killing as an assassination; and (4) denigrated the defense and defense counsel in his reference to the defense theory as a “common tactic.”
A prosecutor has the duty to refrain from making improper, leading, inflammatory, or irrelevant statements to the jury. State v. Scott, 286 Kan. 54, 77, 183 P.3d 801 (2008). We employ a two-step analysis in considering claims of prosecutorial misconduct: First, we must determine whether the prosecutor's statements were outside the wide latitude for language and manner a prosecutor is allowed when discussing the evidence.
Williams cites Scott, 286 Kan. at 81–82, to support his argument that the prosecutor's reference to the crime as “cold-blooded business” was improper. See State v. Hooker, 271 Kan. 52, 67, 21 P.3d 964 (2001). Williams refers us to the prosecutor statement, “This is a case about a cold-blooded business, and a legitimate business world.” The prosecutor's meaning is unclear, but he was apparently commenting on the nature of the killing. In the cases Williams relies on, Scott and Hooker, the court considered comments in closing about the defendant having “ ‘cold-blooded killing eyes' “ or being referred to as a “ ‘killer’ “. The court in Scott stated:
“The consistent rule to be taken from the cases is that a prosecutor may refer to the defendant as a murderer or killer in the course of arguing the evidence shows the defendant committed the murder. See Cravatt, 267 Kan. at 332–34. However, where such statements imply the prosecutor believes something other than the evidence shows the defendant to be a murderer, such as the prosecutor's belief the defendant ‘looks like a murderer’ or has ‘cold-blooded killing eyes,’ or the statements do not relate to the evidence but are simply made to inflame the jury, such as a comment telling the jurors they are ‘eight feet from a killer,’ the argument will be held improper. [Citations omitted.]” Scott, 286 Kan. at 81–82.
We conclude that the remark made in closing was a fair comment on the evidence and not improper.
Williams further complains that the prosecutor made improper comments intended to inflame the passions of the jury when he stated that Williams showed no remorse and also referred to the murder as an assassination. Our Supreme Court has recognized that the wide latitude given to prosecutors concerning the language and manner of their closing argument allows for impassioned bursts of oratory and picturesque speech as long as it does not stray into facts not in evidence. See State v. Rodriguez, 269 Kan. 633, 643, 8 P.3d 712 (2000). The prosecutor's comment that Williams showed no remorse is supported by the tapes of Williams' statements and confession to police. Williams expressed regret for shooting White and getting caught, but he did not express remorse for taking White's life. And the prosecutor's characterization of the killing as an assassination is supported by the manner of the killing—evidence showed that the fatal shot occurred with the gun pressed against the back of White's head.
Williams further complains that the prosecutor denigrated defense counsel and the theory of defense. During closing arguments, defense counsel pointed to the evidence of the shoeprint on White's back door. Defense counsel stated that it was “uncontroverted” that Williams was wearing slippers the night of the murder. Defense counsel also commented on the failure of the State to tests the “so-called blood” on Beard's shoes and the failure of the State to do DNA tests of various articles collected by the police. With regard to the shoeprint on White's door, the prosecutor responded:
“You were asked about there's no disputing the fact that Felton Williams was wearing slippers at the time that he went into the residence of Kenneth White, Says who? He says he had slippers on. Aubrey Oliver says, I don't pay attention to that kind of stuff. He was wearing slippers. Well, there's several possibilities. I'll tell you what, there's no disputing, there's no disputing that the defendant kicked open the door. You see him say that in his confession. So was he wearing something besides slippers, or perhaps could that shoeprint have been there from before? There's no disputing that he kicked open the door, Ladies and Gentlemen. There's a saying that if the facts are against you, you argue the law. If the law is against you, you argue the facts. If the facts and law are against you, you call people names and you yell.”
We consider the last three sentences of the prosecutor's remarks to come close to, if not over, the line of acceptable argument by denigrating the defense and defense counsel. The prosecutor continued as follows, in an apparent response to defense counsel's criticism of the criminal investigation:
“It's a common tactic. In fact it is something that goes along with our culture. To attack the investigation done by law enforcement. I mean, T.V. tends to sometimes show law enforcement as being incompetent. They can't solve the crime unless a detective comes along, private detective and solves it. You know, robotic car or a dog, a bionic thing, person, or maybe a little old lady who writes mystery novels.... In this case, Ladies and Gentlemen, the Hutchinson Police Department did an excellent job. They collected the evidence. They made sure of the chain of custody. They submitted it to the laboratory. I will leave that for your determination.”
These comments by the prosecutor were in direct response to argument made by defense counsel and were not made to denigrate the theory of defense or defense counsel. We acknowledge the prosecutor's duty to refrain from making improper, leading, inflammatory, or irrelevant statements to the jury. Scott, 286 Kan. at 77. But we conclude that these comments, with the one noted exception, were within the wide latitude allowed in closing argument.
Alleged Intimidation of Aubrey Oliver
Finally, Williams complains that the prosecutor committed reversible misconduct by intimidating Oliver.
During Oliver's direct testimony, he needed to be repeatedly told to speak up and pull the microphone up to his mouth. On several occasions, Oliver testified that he could not remember the details of the shooting. After having Oliver declared a hostile witness, the State continued questioning. Oliver denied talking about the plan ahead of time and further denied knowing that “there was going to be a killing” at White's residence. The State continued:
“Q. So you pled guilty to a conspiracy and agreement to commit a murder, and you didn't have an agreement?
“A. I was scared.
“Q. You were scared when you went to the residence?
“A. Huh-uh. Twenty years I was going to do.
“Q. So you were scared of the charges?
“A. Yeah.”
The transcript indicates that an off-the-record discussion was held. Back on the record, the prosecutor stated, “Judge, you want to take the morning recess? Give his attorney a chance to talk to him?” After the recess, Oliver continued his testimony and the State used the redacted portion of Oliver's statement to refresh his memory. Oliver's testimony continued, and he testified that he witnessed Williams shoot White in the leg and the back of the head.
Williams objected to the use of Oliver's statement to refresh his memory on evidentiary grounds, but the record does not reflect any objection to either the recess taken for the conference with Oliver's counsel or on the grounds that the State was intimidating Oliver. The issue has not been preserved for review. Further, the cases relied on by Williams include factual scenarios in which the allegation of prosecutorial misconduct had a basis for support in the record. See, i.e., Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972).
Here, Williams claims are based solely on his allegation that
“the sequence of events recited previously strongly suggests that the prosecutor's request for a recess so Oliver's attorney could ‘talk’ to him led to Oliver's dramatic change in testimony, especially considering the recess was taken immediately after Oliver told the prosecutor he entered the plea agreement out of fear of going to prison for 20 years.”
Williams then makes the conclusory allegation that prosecutorial intervention led to Oliver's change in testimony.
Williams' conclusory allegation of prosecutorial intervention is not supported by the record on appeal. Williams' mere speculation about what occurred off the record cannot serve as a basis for reversible error.
Regardless of the preservation issues, Williams does not show that any purported misconduct would have had any effect on the verdict in light of the overwhelming evidence presented to support the State's theory that Williams shot and killed White. Any misconduct does not amount to reversible error.
Jury Instructions—Lesser Included Voluntary Manslaughter
Finally, Williams argues the district court erred in refusing to give his requested instruction on the lesser included crime of voluntary manslaughter. He based this requested instruction on the theory that an argument spontaneously erupted and resulted in a heat of passion or sudden quarrel killing of White.
The trial court shall instruct the jury on lesser included offenses when there is some evidence that could reasonably justify a conviction for the lesser included crime. K.S.A. 22–3414(3); State v. Kirkpatrick, 286 Kan. 329, 334, 184 P.3d 247 (2008). This duty to instruct applies even if the evidence is weak, inconclusive, and consists solely of the defendant's testimony. 286 Kan. at 334.
Williams testified at trial that he forcibly entered White's residence looking for someone named “Fernando.” White began “talking shit” and continued to threaten to “do this thing” to Williams and his cousin. Williams stated that his adrenaline took over and he did not even remember pulling the trigger. In addition, Oliver testified that there was some yelling and talking before the shooting, but he denied that White was yelling.
Neither Williams nor Oliver gave a recitation of events supporting a theory of a sudden quarrel. This is not a case of parties engaging in civil discourse when a sudden quarrel erupts. The testimony established that Williams, Beard, and Oliver forcibly entered White's residence by kicking in the back door with the intent to enter and to scare White. Once inside, it is reasonable to assume that White might respond to the unlawful intrusion with a forceful expression of his unhappiness with these events. A discussion ensued that led to the shooting. It is inconceivable that Williams' and Oliver's version of events could be viewed as evidence of a sudden quarrel. The district court did not err in refusing to instruct the jury on the lesser included offense of voluntary manslaughter.
Summary
In summary, when Williams moved to suppress the physical evidence obtained in the search of his car, the State abandoned any argument that he consented to the search. The district court ruled that there was probable cause to support the search of Williams' car based on the State's arguments. In arguing the motion, the State took the position that the search was valid because the troopers had probable cause to believe that there was an open container of liquor in the car. Therefore, we examined the evidence at the suppression hearing to determine whether there was substantial evidence to support the district court's findings and whether those findings support the conclusion that the troopers had probable cause to search the car for an open container. In our examination we discovered that the facts determined by the district court did not provide probable cause for the troopers to search the car for an open container. Therefore, we concluded that the physical evidence obtained in the search should not have been admitted at trial. Accordingly, we must reverse Williams' conviction and remand the case for a new trial, at which the physical evidence obtained in the search of Williams' car by the Oklahoma troopers in the course of the traffic stop will not be admitted.
With regard to Williams' subsequent confessions to the Hutchison police, we conclude that the district court was correct in finding that the confessions were freely and voluntarily made and, therefore, admissible at trial. Williams claims for the first time on appeal that his confessions should be barred as the product of the illegal search of his car. But this contention was never presented to the district court for its consideration and has not been preserved for appeal and, therefore, we do not consider it.
With regard to the other claimed pretrial and trial rulings by the court and the claimed prosecutorial misconduct at trial, we urge the prosecutor and the district court on remand to be mindful of our analyses on these issues should they arise again.
Affirmed in part, reversed in part, and remanded for a new trial.