Opinion
No. 02-40063-01-SAC
May 7, 2003.
MEMORANDUM AND ORDER
The case comes before the court on the defendant's following pretrial motions: Motion to Suppress Statement (Dk. 20), and Motion to Dismiss Count Four (Dk. 21). The government has filed a consolidated response. (Dk. 26). The court heard the parties' arguments and evidence on April 3, 2003, at 9:50 a.m. Having reviewed the matters submitted and researched the law relevant to the issues, the court is ready to rule.
INDICTMENT
The grand jury returned a four-count indictment against the defendant. Count one charges the defendant with possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841. Count two charges the defendant with possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Counts three and four charge the defendant with felony possession of a firearm on two different dates in violation of 18 U.S.C. § 922(g).
FACTS
At approximately 7:20 p.m. on May 1, 2002, officers with the Topeka Police Department (TPD), including Detective Brian Hill were called to 1506 SW Polk Street on a shooting. Officers found a shooting victim outside the house at this location. After interviewing residents of the apartments in this house, Detective Hill determined that the following had occurred. Steven Young had been in an upstairs apartment with some women. Young was upset with Gregg Stevens, as he believed that Stevens had called him a drug addict and had been talking about him. Armed with a pistol, Young went downstairs to Steven's apartment and confronted him. Young tried to shoot Stevens but the pistol jammed, and Stevens fired his pistol shooting Young who then fled the scene and later died from the gunshot wounds.
After searching for him for several hours, TPD officers found the defendant Gregg R. Stevens hiding in a house in southeast Topeka. The defendant was arrested and transported to the Topeka Law Enforcement Center where he was placed in an interview room that was equipped to record the interview. After activating the recording equipment, TPD Detectives Brian Hill and Tom Young entered the room, identified themselves, and removed the defendant's handcuffs. The detectives advised the defendant of his Miranda rights, asking after each right whether he understood it. The defendant responded that he understood his rights and answered, "yes," when asked if he wanted to talk with the detectives. The interview lasted approximately two and one-half hours, during which the defendant was given two breaks to smoke and was offered food or drink.
The defendant told the detectives about the shooting on the evening of May 1, 2002, about how he had recently moved into this apartment with his girlfriend, Angela Peoples, about the gun he had used to shoot Young, and the about the gun Young had tried to fire at him. When asked if he had used any drugs prior to the shooting, the defendant said he had used some "wet" marijuana but that he was not "messed up" when the shooting occurred. In fact, he told the detectives he had slept after using the drugs and had been sleeping just before the shooting.
At the hearing, Detective Hill testified that the defendant during the interview appeared coherent, answered questions appropriately, and did not act as if under the influence of drugs. Based on his experience in working in narcotics, Detective Hill knew and testified that "wet" is marijuana or tobacco that has been dipped in PCP or in a combination of PCP and formaldehyde. Hill also testified that persons under the influence of "wet" are difficult to communicate with, act delusional, and exhibit exaggerated moods. From interviews in other criminal investigations, Detective Hill had learned that participants in drive-by shootings liked to smoke "wet" as it made them feel fearless.
The videotaped interview does not show the defendant to have exhibited any symptoms consistent with being under the influence of "wet" or of any other drug or alcohol. The defendant seemed quite able and effective in explaining his actions, the layout of the porch, and the chronological movements of himself and Young during the shooting. He even drew a picture of the porch and their positions at different times during the incident. There are no facts to suggest that the defendant's use of "wet" impaired his judgment and ability to knowingly and intelligently waive his rights and talk with the detectives.
As captured on the recorded interview, the defendant was visibly upset after being told that Young had died from the gunshot wounds. Rather than exploit the defendant's emotional response, the detectives reassured the defendant with such comments as, "you're doing fine." Despite being upset, the defendant never appeared to have become emotionally distraught at the news or to have become unable to appreciate his circumstances. Instead, the defendant appeared to compose himself readily and proceeded to answer the detectives' remaining questions responsively and intelligently.
MOTION TO SUPPRESS (Dk. 20)
The defendant seeks to suppress any statements he allegedly made to law enforcement officers following his arrest on May 2, 2002. The defendant contends he was taken to the Topeka Law Enforcement Center and interrogated by two officers for almost six hours after telling them he had smoked a large quantity of PCP-laced marijuana less than twenty-four hours earlier. The defendant also alleges he was suffering from shock after learning that Steven Young had died from gunshots he had fired. The defendant argues his statements were involuntary.
The government notes that the defendant's interview occurred in a room equipped with audio and video recording equipment which was activated prior to Detectives Brian Hill and Tom Young conducting any of the interview. Detective Hill provided the Miranda warning, and the defendant agreed to waive his rights and speak with the detectives. The government submits that the videotape fully demonstrates that the defendant's waiver was knowingly, voluntarily and intelligently made. The videotape further shows that the defendant was coherent and denied being under the influence of any drugs.
Governing Law and Analysis
"Only if there is a voluntary, knowing, and intelligent waiver of those rights [under Miranda v. Arizona, 384 U.S. 436, 444 (1966)] can authorities question a suspect without counsel being present and introduce at trial in the case-in-chief any statements made during the interrogation." United States v. Bautista, 145 F.3d 1140, 1146 (10th Cir.), cert. denied, 525 U.S. 911 (1998). A waiver of Miranda rights "is voluntary if the totality of the circumstances demonstrates (1) the waiver was a product of free and deliberate choice rather than intimidation, coercion, or deception, and (2) the waiver was made in full awareness of the nature of the right being waived and consequences of the right being waived and consequences of waiving." United States v. Bautista, 145 F.3d at 1149 (citations omitted). The government bears the burden of proving by a preponderance of the evidence that the defendant's waiver of rights was voluntary. United States v. Toro-Pelaez, 107 F.3d 819, 825 (10th Cir.), cert. denied, 522 U.S. 845 (1997). A waiver can be effective only if the totality of the circumstances surrounding the interrogation shows both an uncoerced choice and the requisite level of comprehension. Moran v. Burbine, 475 U.S. 412, 421 (1986).
In deciding if the waiver was intelligent, the court looks at whether "the defendant knew that he did not have to speak to police and understood that statements provided to police could be used against him." United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990) (citation omitted), cert. denied, 499 U.S. 908 (1991). A defendant, however, need not appreciate "the tactical advantage of remaining silent" for the waiver to be intelligent. Id.
In evaluating the voluntariness of a confession, the court decides "whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution." Miller v. Fenton, 474 U.S. 104, 112 (1985). The test is whether, considering the totality of the circumstances, the government obtained the statements by physical or psychological coercion or by improper inducement so that the suspect's will was overborne. See United States v. Glover, 104 F.3d 1570, 1579 (10th Cir. 1997). Factors relevant in determining whether a confession was coerced include: "(1) the defendant's age, intelligence, and education; (2) the length of the detention and interrogation; (3) the length and nature of the questioning; (4) whether the defendant was advised of his constitutional rights; and (5) whether the defendant was subjected to or threatened with any physical punishment." United States v. Lugo, 170 F.3d 996, 1004 (10th Cir. 1999) (citing in part Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). "No single factor is determinative." United States v. Benally, 146 F.3d 1232, 1240 (10th Cir. 1998) (citation omitted).
"[A] confession is only involuntary when `the police use coercive activity to undermine the suspect's ability to exercise his free will.'" United States v. Lugo, 170 F.3d at 1004 (quoting United States v. Erving L., 147 F.3d 1240, 1249 (10th Cir. 1998)). In Colorado v. Connelly, the Supreme Court clarified that "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment." 479 U.S. 157, 167 (1986). Absent evidence of coercion, a defendant's personal characteristics are constitutionally irrelevant. United States v. Erving L., 147 F.3d at 1249.
A confession "must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." Malloy v. Hogan, 378 U.S. 1, 7 (1964). "Where conditions of interrogation are so coercive that they rob suspects of their free will, courts will suppress defendants' statements notwithstanding the fact that these statements came on the heels of properly administered Miranda warnings." United States v. Alvarez, 142 F.3d 1243, 1248 (10th Cir.), cert. denied, 525 U.S. 905 (1998). "Intimidating statements obtained by government acts, threats, or promises that permit the defendant's will to be overborne are coerced confessions running afoul of the Fifth Amendment. . . ." Griffin v. Strong, 983 F.2d 1540, 1543 (10th Cir. 1993) (quoting United States v. Short, 947 F.2d 1445, 1449 (10th Cir. 1991), cert. denied, 503 U.S. 989 (1992)). "Coercion may involve psychological threats as well as physical threats." United States v. Finch, 998 F.2d 349, 356 (6th Cir. 1993).
The videotape recording of the interview shows the defendant was properly administered his Miranda rights before any incriminating statements were elicited from him. The detectives carefully asked after each right whether the defendant understood it. The defendant indicated his understanding of the rights and then said he wanted to talk with the detectives. The detectives made no attempt to use physical force, intimidation, promises, coercion, or threats to obtain the defendant's cooperation. There is no evidence of any improper influence being exerted against the defendant.
Throughout the interview, the defendant appeared fully coherent and not under the influence of any drugs or alcohol. The defendant told officers that he was not "messed up" at the time of the shooting, and there is no evidence of the defendant consuming any drugs or alcohol during the five hours before his arrest. Detective Hill testified from his experiences that persons under the influence of wet display certain behavior, none of which was displayed by the defendant during the interview. The detectives had no difficulty communicating with the defendant. He chronologically recounted the events surrounding the shooting and answered their questions in a manner that was articulate, detailed and responsive. The defendant even drew a diagram to explain the physical location of persons at the time of the shooting.
The videotape also shows the defendant understood that his statements could be used against him. When initially questioned about drug trafficking activities, the defendant denied any current involvement and admitted to little more than occasional use. Only after the detectives confronted him with the results from their search of his apartment did the defendant say he had sold crack cocaine from his apartment. The evidence establishes that the defendant knowingly, intelligently and voluntarily waived his rights and proceeded to speak with the detectives knowing his statements could be used against him. There is no evidence of coercive police activity that would render the defendant's statements involuntary. The defendant's motion to suppress is denied.
MOTION TO DISMISS (Dk. 21)
Count four charges that in late April of 2002 the defendant having been convicted of a felony possessed a Makarov 9 mm semi-automatic pistol in violation of 18 U.S.C. § 922(g). The defendant contends this charge stems exclusively from his statement to officers that Mr. Young had pointed at him a gun which the defendant had owned previously. The defendant argues that he cannot be convicted on the basis only of his uncorroborated confession and that the government has provided nothing in discovery to corroborate his confession. According to the government, the defendant's girlfriend, Angela Peoples, told officers during a videotaped interview that the defendant had owned this same gun and sold it recently at her request. The defendant replies that Ms. Peoples lacks personal knowledge and her statement is mere hearsay.
"A criminal conviction cannot be sustained when the offense is proven solely by an uncorroborated extrajudicial confession." United States v. Chimal, 976 F.2d 608, 610 (10th Cir. 1992) (citing Smith v. United States, 348 U.S. 147, 152 (1954)), cert. denied, 507 U.S. 938 (1993). In addition to the confession, the government must introduce independent corroborating evidence which would tend to establish the trustworthiness of the statement. "The corroborating evidence is adequate if it `supports the essential facts admitted sufficiently to justify a jury inference of the truth' of the confession." United States v. Chimal, 976 F.2d at 610-11 (quoting Opper v. United States, 348 U.S. 84, 93 (1954)). The government can use circumstantial evidence to corroborate a confession, and the amount and kind of evidence needed to corroborate a confession will depend upon the facts of each case. United States v. Chimal, 976 F.2d at 608.
The statement of Angela Peoples is independent evidence corroborating the defendant's confession that he had previously owned the gun recovered from Young. Contrary to the defendant's argument, the videotaped interview does not show that Ms. Peoples' corroborating statement is based solely on what she knows from talking with others rather than from what she knows by reason of her personal observations of the defendant and this gun. Angela Peoples' knowledge about this gun and the defendant's involvement with it is independent from the defendant's statement to the detectives. Indeed, in her statement to officers made before the defendant was arrested, Ms. Peoples said that she had instructed the defendant to get rid of the handgun because she believed the "KBI" marking appearing on the gun indicated that it had been stolen from the Kansas Bureau of Investigation. During his interview, the defendant told the detectives that he had bought the "KBI" gun for $50 and that Peoples had sold it without his permission. Ms. Peoples told an officer that the defendant had bought the gun and sold it to an individual by the name of "Shilo." Though the defendant and Ms. Peoples have different recollections as to who sold the gun, her statements as to the defendant's purchase of the gun sufficiently corroborate the defendant's admission that he owned the gun, thereby satisfying the requirements of Chimal. The court denies the defendant's motion to dismiss.
IT IS THEREFORE ORDERED that the defendant's Motion to Suppress Statement (Dk. 20), and Motion to Dismiss Count Four (Dk. 21) are denied.