STATE v. STONE

---

---

p835286 Kan. 824, 835-36, 190 P.3d 207 (2008).

When a defendant claims his or her statement was not voluntary, the prosecution has the burden of proving by a preponderance of the evidence that it was voluntary. The essential inquiry is whether the statement was the product of an accused's free and independent will. The court looks at the totality of the circumstances surrounding the statement and determines its voluntariness by considering the following nonexclusive list of 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.]" Johnson, 286 Kan. at 836. We have recognized that law enforcement coercion can be mental or physical. State v. Jackson, 280 Kan. 16, 36, 118 P.3d 1238, cert. denied 546 U.S. 1184 (2006).

K.S.A. 60-460(f) also governs the admissibility of confessions or statements by the accused:

"In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged [is admissible], but only if the judge finds that the accused (1) when making the statement was conscious and was capable of understanding what the accused said and did and (2) was not induced to make the statement (A) under compulsion or by infliction or threats of infliction of suffering upon the accused or another, or by prolonged interrogation under such circumstances as to render the statement involuntary or (B) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same."

Stone argues that his lack of experience with law enforcement and the late hour of the interrogation, combined with promises and deceptive practices by Detective Mar, rendered his statements involuntary and not a product of his free and independent will.

Following the hearing, the trial judge made extensive findings on the record on each of the six voluntariness factors set out above. He found there was no question regarding Stone's ability to understand English and no reason to suggest that Stone's age, 23, or his intellect or background presented an obstacle to his understanding of the interrogation proceedings. Stone has not argued that they did, nor have we uncovered any reason to suspect those factors affected his statements.

Next the district judge reviewed the manner and duration of the interrogation. He observed that at times the questions were tough or aggressive but did not find the tone of the interrogation to be anything out of the ordinary. Nor did the length of the interrogation, a little over 2 hours, present a problem of undue duress. He also found that Stone made no requests to communicate with anyone outside of the interrogation and, consequently, that factor simply did not apply. Again, Stone has not argued these issues, and the tape recording of the interrogation supports the district court's findings.

The district court next considered Stone's mental condition at the time of the interrogation. Stone argues that he was tired and confused due to the late hour of the event, but the district court found that Stone had no difficulty in understanding and responding to the detective's questions. The district court believed that Stone's claims of exhaustion or confusion only correlated with tough questions by the detective but, in fact, Stone repeatedly stated during the interview that he was tired. He mentioned having worked 100 hours at his fast food job over the preceding 2 weeks, having a sore throat, and having recently been to the hospital for an ankle injury. He told the detective early in the interview that he becomes confused when under pressure, and this claim was born out by the recording and transcript. His responses to the detective's questions were often disorganized and garbled. He cried several times during the interrogation and became audibly frustrated with the detective's repeated questioning.

The district court then reviewed the tactics used by Detective Mar during the interrogation. Stone argues that Mar used deceptive tactics to confuse him and pressure him into making incriminating statements. Specifically, the district court reviewed three tactics used by Mar: insisting that Stone tell her "the truth," telling Stone that he needed to appear cooperative to the prosecutor and the judge, and lying to Stone about the presence of his semen on the victim's pajama top.

Repeatedly throughout the interrogation, Detective Mar exhorted Stone to tell the truth or told him she was "just trying to get the truth." In context, it is clear that Detective Mar was accusing Stone of lying when he repeatedly denied the accusations against him and that "the truth," from the detective's perspective, was the victim's version of the events. She combined this tactic with repeatedly telling Stone that she had confirmed the presence of semen on the victim's pajama top and she was just trying to figure out how Stone's semen got on the pajama top. While she did tell him that she had not yet matched DNA from the pajamas to his DNA, it is clear from her statements that she had little, if any, doubt that the two would match. In fact, she told Stone that she believed they would match. She combined these two tactics with statements inferring that only confessing to the crime would affect whether Stone went to jail or the length of his jail sentence.

The trial judge reviewed each of the three alleged deceptive practices individually, citing case law to support his conclusion that each did not render Stone's statements involuntary. With respect to the allegation that Mar unduly pressured Stone by repeatedly insisting that he tell the truth, the court cited State v. Newfield, 229 Kan. 347, 623 P.2d 1349 (1981), for authority that encouraging the defendant to tell the truth is not inappropriate. In Newfield, the issue was whether the defendant's statement should be suppressed because he had invoked his right to counsel but had then confessed before counsel was appointed or present. The interrogating officer in that case told Newfield that the people of the town would think better of him if Newfield told the truth. Newfield recites the well-worn rule that a "mere exhortation or adjuration to speak the truth, or the mere suggestion to an accused that he confess, will not exclude a confession. [Citations omitted.]" 229 Kan. at 359. But this rule was not essential to the decision in Newfield, and the facts of the case are not similar to those presented here. The issue in Newfield was more precisely whether the statement that the town would think better of the defendant if he confessed carried an implied promise. There was no indication in Newfield that the officers attempted to pressure Newfield into talking by repeatedly insisting that he explain away nonexistent evidence as happened in this case. In this case, Mar's repeated exhortations to Stone to tell the truth, combined with her insistence that Stone's semen was on the victim's pajamas and that she needed an explanation for that, created considerable pressure on Stone to come up with an explanation.

Next the trial court considered whether Detective Mar had made any promises to Stone that would render his statements involuntary. The court focused on only one statement in which Detective Mar told Stone:

"KM: [W]hy don't you think about what is — what is the judge and the [district attorney] gonna think about how — how you can step up and be honest and tell the truth. That you can be a man and step up and tell the truth. That speaks volumes. That's — that's [unintelligible] important that has an opinion of you. Step up and be a man and tell the truth."

The judge cites State v. Altum, 262 Kan. 733, 941 P.2d 1348 (1997), and State v. Johnson, 253 Kan. 75, 853 P.2d 34 (1993), as authority for his finding that this statement was not unduly coercive and did not render Stone's statements involuntary. Standing alone, the statement approximates the statements at issue in both Altum (detective told Altum if he stuck to his story, he was going to look foolish in court and the detective was not going to be able to tell the judge or the jury that he cooperated in the investigation) and Johnson (detective told Johnson he could not make any deals, he could only go to the prosecutor and indicate whether Johnson was cooperating). We would agree with the trial court's findings if there were nothing more in the transcript to question, but that is not the case as we will demonstrate shortly.

Finally, the trial court considered the repeated statements by Detective Mar that there was semen on the pajama top and her implications that the DNA sample taken from Stone would match the DNA that would be pulled from the clothing. The trial court notes that a "big part of the interview was the inference or assumption by both the interrogator and Mr. Stone that there was semen on the clothes of the victim and that the semen was available to be tested and analyzed. "In fact the substance on the pajama top could not be confirmed to be semen, much less be matched to Stone.

The trial judge reviewed State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (1999), and found that it stands for the rule that deceptive interrogation techniques do not establish coercion but are one circumstance that must be viewed in conjunction with the others present to assess the totality of the circumstances surrounding Stone's statements and their effect on its voluntariness. Nonetheless, the district judge seems to conclude that since Detective Mar sincerely believed that there was semen on the clothing, this tactic could not be found to be unduly coercive.

The trial judge considered each of these interrogation techniques individually, but there is no indication in the record that he considered the cumulative effect of these techniques when taken as a whole, and it is in this regard that we believe the trial court's review was lacking. A review of the recording and transcript establishes that the combined effect was significant.

Shortly after the second part of the interview began, Detective Mar began asking Stone to explain how his semen could have ended up on A.L.'s pajama top.

"KM: Okay, so, would there be any reason why she would have any of your

DNA on her?

"JS: Uh huh (neg.).

"KM: Would there be any way that any of your semen would be on her or on her clothing?

"JS: No.

"KM: So, if I found semen on her clothing that she was wearing last night, no chance it's yours?

"JS: No.

"KM: Okay. Any idea how she'd get semen on her clothing?

"J.S: But I wouldn't do it. I know huh — never mind, I'm to[o] tired to think.

"KM: I mean, would you know of any[ ]way that she's [ sic] have semen on her clothing?

"JS: No. Cause I know I wouldn't do nothing like this.

"KM: Okay.

"JS: I don't know how many times I have to sit here and say this.

"KM: Well, I'm — I'm just trying to figure out what happened. I mean it's not like —

"JS: I'm getting wrongly accused that's what it's getting down to the point.

"KM: Okay.

"JS: I'm getting wrongly accused of it. I'm tired."

As the interview continued, Mar continued to press for an explanation of how Stone's semen could be on A.L.'s pajama top. Stone continued to deny wrongdoing and even told the detective that it did not matter what he said, that she was apparently going to say he did it regardless of what he said.

"JS: And I'm tired of it. I don't want to be accused of stuff anymore.

"KM: Okay. So why would she tell me this story?

"JS: Where is this leading to?

"KM: Well, I'm trying to figure out, okay, it's leading to I've got clothing that has semen on it. Okay. I had a lab out at the house and they [luminoled] have you ever seen that where they [luminol] a couch and then black light it? And if there's semen there it shows up. And they found semen on the futon. Okay. I have clothing that we [luminoled] and I have semen on that clothing. Okay. And I'm gonna match, I'm gonna run that semen with your DNA that I collected tonight through the lab. Now, what I'm asking you is am I gonna get a match?

"JS: But see thing is I would not do nothing, I would not have nothing like that on the clothing. And I did not do nothing with her.

"KM: Okay. So, you're saying that — that no way what happened what she's saying happened happened last night?

"JS: Not even half of it.

"KM: Okay. So, am I gonna get a match?

"JS: ___ if you do ___ you do ___ because you know —

"KM: Okay. So, if I do —

"JS: [I]f you guys are going to do something —

"KM: — what I'm asking you, is explain to me Josh, how would your semen show up on her clothing?

"JS: I did not do have her do nothing to me.

"KM: Okay. So, how — how is it that — that — that she's got semen on her clothing? I mean there's no doubt that's what it is. Okay.

"JS: _______.

"KM: Cause we've already confirmed that — that's what it is. Now, we're just gonna do the DNA pull the DNA from it _______."

Shortly after this point, Detective Mar told Stone that "we need to get you some help. We need to get you some counseling." Stone began asking her how confessing to the crime was going to help him. He claimed he was being wrongly accused. Stone can be heard crying on the tape and then told the detective that A.L. did get up in the night and came over to the futon where he was sleeping to give him a hug. He said her hand rubbed up against him and he pushed it away, but he continued to maintain that he did not have her do anything to him. The detective repeated the victim's story and continued to question why Stone's version did not match the victim's. She continued to press him to tell her what happened. Stone responded:

"JS: How many times do I have to tell you on this recorder that I — that I got woke up and I was half asleep while I was sitting up and she bent over and gave me a hug.

"KM: Okay.

"JS: How many times I got to tell you that story?

"KM: But that's not answering my question. When I said —

"JS: How's that not answering your question.

"KM: I'm asking you are you saying that what she's telling us is just a big story?

"JS: I would not have a little girl touch me.

"KM: Okay. Is [A.L.] telling us a story?

"JS: I don't know _____ I don't know.

"KM: No, I don't believe she is. I think she's telling us the truth. Because she's very precise about it and — and you know, I asked you to tell the story the same and your story changes. Her story _____ and she's told _____.

"JS: Cause my nerves are shot through the roof, okay?

. . . .

"KM: You're telling me that a nine year old [girl's] two little tiny fingers slipped down your pants and grazed your penis and got a big gloop of semen.

"JS: Basically, what you're telling me is that I did do it.

"KM: I'm telling that that's exactly what happened. . . . And I, I'm pretty — I'm pretty sure that she's telling me is the truth. And I also know that when I match the DNA off the couch and off her shirt with the DNA from your mouth, it's all gonna match. All of it. Because she's telling me the truth. So now, I'm just asking you to tell me the truth. Help yourself. It's gonna help you because it's gonna show that you're not, you didn't prey on her." (Emphasis added.)

The interrogation continued in this manner, with the detective telling Stone to "just tell the truth" and Stone becoming increasingly frustrated and maintaining that he believed he would be in trouble whether he told the truth or not.

"KM: So, she's lying? You're telling me she's lying?

"JS: How — how is to me every time I tell the truth that I know that I if that even if I do say the truth then my ass ain't gonna go to jail how would that help her.

"KM: Because you messed her mind up. She ___ she trusted you. You're an adult. Okay. It's gonna be helpful for her if we can tell her, you know what? He made a mistake. He ___.

"JS: How is that going to cause me to go and get help too.

"KM: How, is not gonna help you to know that you've told the truth and that you've, you know, that look at what happened.

"JS: How is that gonna keep me out of jail?"

KM: Huh? Nothing is going to keep you at this moment out of jail unless we can figure out what's the truth. What is the truth. I've asked you. Is she lying? And you can't answer that, because you know she's not lying.

. . . .

"JS: But how but what I want to know ma'am is why ___ telling the truth ___ get help when it's gonna send me straight to where.

"KM: So, Josh, what you been telling me tonight's been a lie?"

JS: No, but — not all of it.

"KM: Well, I believe the part where you're sitting up is the truth.

"JS: But why, but why, but I wouldn't have little girl touching me on my —

"KM: I don't think, I don't think that you do that on normal basis. I think last night you made a bad choice.

"JS: ___ but —

"KM: Okay, You made a bad choice. So, you know what you step up and you take punishment for being, making a bad choice, just like you _____.

"JS: How long I'm going to be in? (crying)

"KM: I don't know. Depends on how much you're willing to be honest about." (Emphasis added.)

Shortly after this point in the interrogation, Mar told Stone to think about what the judge and the prosecutor would think. Although he continued to deny that he had A.L. do anything to him, he then told the detective that A.L. grabbed his penis and squeezed it.

"KM: Okay. So, she reached down and —

"JS: Yes, ma'am.

"KM: — took a hold of your penis?

"JS: Yes, ma'am.

"KM: Okay. And having somebody holding your penis and she was moving up and down cause she's made that motion hand motion with her hand, she was moving up and down on your penis wasn't she?

"JS: Yes, she was.

"KM: Okay.

"JS: But I didn't have her do it."

Stone told Detective Mar that the touching lasted approximately 3 minutes during which he told A.L. to stop. These turn out to be the most incriminating statements that Stone made. Shortly after he made them, the detective terminated the interview.

As stated earlier, a dual standard of review applies to our review of the trial judge's decision. First, we examine whether substantial competent evidence supports his findings. In this case, substantial competence evidence does underlie most of his factual findings, although the trial judge ignored the more egregious statements made by the detective during the interrogation. Second, we review de novo the ultimate legal conclusion made by the trial judge. It is on this point that we believe the trial court erred as a matter of law in failing to look at the circumstances of the interrogation in totality. The detective's repeated insistence that the truth could only be the version told by the victim, combined with her unequivocal statements that there was semen on the victim's pajamas and her belief that the DNA in it would match Stone's, followed by statements to the effect that only confessing could keep him out of jail or affect the length of his jail term made the circumstances unduly coercive. Moreover, a close examination of the interrogation reveals that Stone did not volunteer facts but rather he adopted facts as they were suggested to him by the detective and as her insistence that he tell "the truth" became more adamant. For example, this exchange constituted the first point at which Stone went beyond denying that anything at all had happened:

"JS: But see, I don't know why she would say this. I would never touch a little kid.

"KM: Okay.

"JS: I wouldn't.

"KM: Do you sleep walk? I mean —

"JS: No, I don't. I know that for a fact.

"KM: Okay. I mean, would it be that she's just, I mean she — she misses her dad and you said that she got very attached to you. Uh — did she maybe, I don't know crawl into bed with you one night or last night was she, do you remember when she came out to get a drink did she come over and give you a hug or say anything.

"JS: One time — one time, she did come over and give me a hug.

"KM: Last night?

"JS: Yes. That's — that's it. But no, nothing like that else like that happened.

"KM: Okay.

"JS: I wouldn't do that and I would not even touch that little girl, let alone a little kid."

Another tactic used by Detective Mar involved minimizing the seriousness of the accusations against Stone and indicating that a confession would corroborate that he was not a child sex predator:

"JS: But I wouldn't do that. I wouldn't.

"KM: I mean, it's not saying that you're a horrible person, it's saying that, you know, you've been under a lot of pressure and you've been very tired like you said, you know, it's — it's a release. That kind of sexual, you know, it's just masturbation. It's not sex.

"JS: If I — if I had that kind of sex — sexual tension or whatever I wouldn't do that with a little a minor or nobody. I would go and I would get myself a girlfriend.

. . . .

"KM: There was no sex. I mean, she's not saying that you had sex with her but that you just had her, just basically just jack you off. And that's, you know, that's not a big deal. It's not, I mean it's not full blown sex. You know, it's just — just a little hand job that's all.

"JS: But I wouldn't have a little kid do that.

"KM: Okay.

"JS: If I wanted to do it I'd do it in my damn my — myself.

"KM: Okay. But you never answered my question. So, is she lying?

"JS: Yes.

. . . .

"KM: I'm just wondering Josh, you know, it's — it's not like this is full blown sex, okay. This is a hand job, alright.

"JS: Okay. But — that still don't matter "KM: I mean, if that's what it was, that's what it was. Tell us the truth. I mean, that's all we want to know.

"JS: — But — I'll go to jail tonight. And I don't want to, I'm trying to keep myself out of jail period.

"KM: Okay. So —

"JS: _______.

"KM: — tell the truth. Okay. [A.J.] is nine years old. And we need to get her some help. We need to get her some counseling. We need to get you some help. We need to get you some counseling.

. . . .

"KM: Yeah, I understand. You know, Josh, I believe you — you know you're telling me, you know, pieces of the truth. And I believe you want to tell me you know.

"JS: But I didn't do it.

"KM: Well, I'm not saying that your — that you — you forced her. I'm just saying that I mean she was — she came with you out to the living room willingly. I'm not saying you forced her.

"JS: I didn't have her do nothing like that to me. And I wouldn't have no.

. . . .

"JS: Basically, what you're telling me is that I did do it.

"KM: I'm telling that that's exactly what happened. I think that you did pick her up from her room, bring out into the couch, sat down on the couch, put her hand around it and showed her and had her jack you off. Not because you have a fetish or that you're preying or anything else, but it's somebody different. It's somebody else helping you get gratification that you needed because you're stressed out and over working and tired and everything else. And I, I'm pretty — I'm pretty sure that she's telling me is the truth. And I also know that when I match the DNA off the couch and off her shirt with the DNA from your mouth, it's all gonna match. All of it. Because she's telling me the truth. So, now, I'm just asking you to tell me the truth. Help yourself. It's gonna help you because it's gonna show that you're not, you didn't prey on her. You didn't force her. You didn't intentionally did this. It was one of those, okay, you had a, you're tired, you're not feeling good, you made a bad choice, a bad judgment. Okay. Or are you this guy that's been preying on this little girl that took her and forced her to jack you off, because you're just a — a pedophile that preys on little girls? So, help me figure out what — what — what happened and what kind of a person are you. Were you sick and tired, and you know what, you made a bad choice because you needed some tension release. Or are you this person that preys on these little girls that — that drags her in and gets your gratification by little girls jacking you off?"

These statements cumulatively and strongly suggested to Stone that only confessing to the "truth" as the detective saw it would save him from being painted as a "preying pedophile" and, in turn, affect his sentence.

In State v. Swanigan, 279 Kan. 18, 106 P.3d 39 (2005), the defendant was accused of robbing a convenience store. Before entering, the robber had put his hand to the window and looked into the store. Swanigan was picked up several days after the robbery and interrogated. During the interrogation, the officers repeatedly told Swanigan that his fingerprints had been found on the window. After reviewing the tape recorded interrogation, this court found "no express threats were uttered, but . . . evidence of implied threats exist[ed] on the audiotape" and the implied threats were intertwined with the officers' urgings that Swanigan cooperate. 279 Kan. at 26. The officers told Swanigan that he needed to "`come clean'" in order to establish that he had not taken part in a number of other crimes:

"`We just want to know your involvement in yours. That's all we want to know from you, so that you don't get charged with all of them. Cause I honestly don't think you're involved in all of them.'" 279 Kan. at 26.

This court found that the lies regarding the fingerprints were one circumstance that must be considered along with others in the case including the police interrogation tactics, and that the implication of negative consequences if Swanigan did not "cooperate" was inconsistent with his rights articulated in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), and another circumstance to be factored into the totality.

"Although any one of these factors which Swanigan asserts — his low intellect and susceptibility to being overcome by anxiety, the officers' repeated use of false information, and their threats and promises — may not be sufficient to show coercion, the combination of all of them in this case leads us to conclude as a matter of law that Swanigan's October 31 statement was not the result of his free will, but was involuntary." Swanigan, 279 Kan. at 39.

This case has much in common with Swanigan. While any one of the circumstances surrounding this interrogation, standing alone — Stone's condition, Detective Mar's misleading statements about the semen on the pajama top, her statements that the length of his sentence could only be affected by his telling the "truth," the implications he would be viewed as a sexual predator unless he confessed — might not have led us to conclude Stone's statements were coerced, a review of the audio recording taking into account all of these circumstances, as the law requires, leads us to conclude as a matter of law that Stone's statements were not the product of his free and independent will and that it was error to admit them at trial.

During deliberations, the jury asked to hear nearly the entirety of the evidence again, focusing specifically on the portions of Stone's interrogation where he starts to say that, while not at his behest, something did happen between himself and A.L. After hearing that testimony again, the jury informed the court that it was deadlocked and could not reach a verdict. Only after being sent back to the jury room did it return a verdict and then only on one of the least serious of the four crimes with which Stone was charged — the aggravated indecent liberties charge that alleged he submitted to her touching. Under these facts, it is impossible to conclude beyond a reasonable doubt that the admission of the statements Stone made during the interrogation were not key to the jury's verdict; therefore, we must reverse that verdict and remand the case for a new trial at which the statements made by Stone to Detective Mar are not admissible. See Arizona v. Fulminante, 499 U.S. 279, 310, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991); Swanigan, 279 Kan. at 45-46.

The conviction is reversed, and the case is remanded to the district court for a new trial at which Stone's statements to the detective are not admissible.