IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 87, 017
STATE OF KANSAS,
Appellee,
v.
MICHAEL WHITE,
Appellant
S YLLABUS BY THE COURT
1. Severance under K.S.A. 22-3204 lies within the sound discretion of the trial court, and should occur when a defendant has established there would be actual prejudice if a joint trial occurred.
2. The usual grounds for severance are: (1) the defendants have antagonistic defenses; (2) important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) the confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.
3. Antagonistic defenses occur when each defendant is attempting to convict the other or where the defenses conflict to the point of being mutually exclusive or irreconcilable.
4. A defendant is deprived of his or her Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant.
5. The admission of a nontestifying codefendant's statement into evidence at trial does not violate the Sixth Amendment Confrontation Clause if the court gives a proper limiting instruction and redacts the codefendant's statement to eliminate not only the defendant's name but any reference to his or her existence. This is true even though such statement incriminates the defendant when linked with other evidence admitted during the trial; this inferential incrimination does not make an otherwise admissible statement inadmissible so long as the statement is not incriminating on its face.
6. The introduction into evidence of a defendant's redacted statement is proper unless the redaction procedure distorts the statement.
7. A determination that a statement was freely, voluntarily, and intelligently given will be upheld if there is substantial competent evidence to support such a conclusion. In making the factual review, the appellate courts will not reweigh the evidence and will give deference to the factual findings of the trial court. The legal conclusion drawn from those facts is subject to de novo review.
8. To determine whether a defendant's confession is voluntary, a court looks at the totality of the circumstances. The prosecution bears the burden of proving that a confession is admissible by a preponderance of the evidence. Factors include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry is whether the statement was the product of the free and independent will of the accused.
9. The question of whether there is a violation of statutory and constitutional rights to a speedy trial is a matter of law over which this court has unlimited review. It is well established that the statutory time period for a speedy trial starts on the date of arraignment. The State is obligated to ensure the accused is provided with a speedy trial. A defendant is not required to take any affirmative action to see this right is observed.
10. K.S.A. 22-3401 permits district courts in criminal cases to grant continuances to both the State and defendants for good cause shown.
11. Interpretation of a statute is a question of law, and the appellate court's review is unlimited. An appellate court is not bound by the district court's interpretation of a statute. When a statute is plain and unambiguous, the intention of the legislature as expressed will be given effect. In ascertaining legislative intent, various provisions of an act must be construed together with a view of reconciling and bringing them into workable harmony.
12. The statutory time period allowed for a continuance under the speedy trial provision of K.S.A. 22-3402(3)(c) begins on the date of the trial setting, not the date on which the motion to continue was granted.
13. K.S.A. 22-3423(1)(a) permits a trial court to terminate the trial and order a mistrial at any time termination is necessary because it is physically impossible to proceed with the trial in conformity with law. Terminating a trial and declaring a mistrial are largely within the discretion of the district court. A clear showing of abuse of discretion must be made before the mistrial decision will be set aside on appeal.
14. The statutory time period under K.S.A. 22-3402(4) for determination of speedy trial begins to run on the date a mistrial is declared regardless of the cause of the mistrial.
Appeal from Wyandotte district court, THOMAS L. BOEDING, Judge. Opinion filed April , 2003. Affirmed.
Stephen B. Chapman, of Kansas City, argued the cause and was on the brief for appellant.
Jerome A. Gorman, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, J.: Michael White appeals from his convictions of two counts of first-degree murder, two counts of attempted first-degree murder, two counts of criminal possession of a firearm, and one count of conspiracy to commit first-degree murder. White was sentenced to two consecutive life sentences in prison. He does not raise any challenges to his sentences, but appeals his convictions, arguing the trial court erred in (1) denying his motion for a severance from the trial of codefendants, (2) admitting redacted statements of the codefendants, (3) admitting his redacted statement, (4) denying his motion to suppress his statement, and (5) denying his motion to dismiss for speedy trial violations. We affirm.
FACTUAL BACKGROUND
White's convictions stem from two separate drive-by shootings in January 2000. The first occurred on the night of January 24, 2000. According to the testimony of Marcus Quinn, he and Joseph Morton were drinking beer in a car parked in an empty lot located across the street from Quinn's home near 20th Street and Longwood in Kansas City, Kansas. While sitting there, Quinn saw a red truck followed by a white car. About 30 minutes later, Quinn saw the same red truck and white car. This time both vehicles stopped and the occupants of the truck shot multiple times at the Chevrolet Caprice in which Morton and Quinn were sitting. Quinn testified that the right side of his head was grazed, but he was not seriously injured. Morton walked away from the scene, but died at the hospital. Police investigating the incident found 22 spent shell casings at the intersection from three different calibers of weapons.
The second shooting occurred in the early afternoon of January 26, 2000. Christopher Union and Lee Brooks were driving a white pickup truck when as many as 50 gunshots were fired at the truck. Both Brooks and Union were hit by bullets; Union died from the injuries.
The police investigation of the two shooting incidents eventually led to the custodial interrogations of Michael White, Shawndell Mays, Keith Mays, Peter Davis, and Carvell England. All of them talked to the investigators, describing the events of the two shootings to various degrees, with Shawndell Mays and White admitting to firing shots during both incidents and all of them admitting to being a witness to one or both occurrences.
In the same information, the State charged White, Shawndell Mays, Davis, Keith Mays, and England with various charges relating to shootings on January 24, January 26, or both. The five codefendants' joint trial lasted nearly 3 weeks during which 39 witnesses testified. Generally, all of the defendants denied the allegations and, through cross-examination of the State's witnesses, sought to create reasonable doubt. They also generally relied upon a self-defense theory.
Before trial, the court conducted a lengthy hearing in which counsel reviewed each codefendant's statement and determined how the statements should be edited to remove any references to other defendants. At the trial, recordings of the edited statements of the five codefendants were played for the jury over objections by defense counsel. The versions played to the jury reflected the changes agreed upon by counsel and the trial court, including removal of most plural pronouns, direct references to other defendants, and questions or answers relating to the actions of other defendants. Through the use of compact disc and digital editing technologies the sound recordings were altered to reflect the changes. The resultant recordings had no pauses where material had been removed. The jury was not given written copies of the statements.
White's statement illustrates the editing that occurred and, since White did not testify, provided his version of events and his self-defense theory. At the beginning of the recording, the detectives stated there had been prior discussions in which they had introduced themselves and advised White of his Miranda rights. White had read the "Advice of Rights" form aloud, initialed the rights, and signed the waiver indicating a willingness to talk to detectives. A detective asked White to give some background about the ongoing conflict between White and the Quinns. During a conversation of some length, approximately five transcribed pages, there was dialogue in which White explained that he, the Mays family, and others were in an ongoing dispute with the Quinn family and their associates. White indicated that he used to "be cool" with the Quinns and sold drugs for them. He then had a falling out with the Quinns and, according to White, they had a person shoot him. In 1997, approximately 7 months after the falling out, a 10-year-old girl who was a friend of White's and a cousin of the Mayses was killed in a drive-by shooting which White blamed on the Quinns. White described the ongoing nature of the dispute, the violence involved, and identified locations, including businesses, where he could not go because the Quinns would shoot him. The next two questions and corresponding answers were deleted from the recording. They were:
"Q: And I think that you indicated earlier that the Mays family and yourself had finally gotten sick of this, isn't that right?
"A: Yep.
"Q: Tell us what was the breaking point or what was the last straw?
"A: We bust them."
The detectives then focused on the January 26th shooting of the occupants of the white pickup truck. White described the truck, indicated he was in a black Suburban, and stated he had a "nine Beretta." When asked where he was in the Suburban, he replied: "In the front seat." Many questions and answers were edited out of this portion of the statement. The edited material related to who else was in the Suburban, the presence of a second car, and who was in the second car. The following questions were asked about what happened. Any material edited out of the recording is underlined.
"Q: Alright now when you come upon this truck what did you see and what did you say?
"A: I said, 'there go the Quinns.'
"Q: Everybody in the Suburban how did they react to that?
"A: 'There's the Quinns' and they was like, they started reaching for they guns.
"Q: Who everybody in the Suburban or everybody in the truck?
"A: Everybody in the truck cause they started driving off like they started skidding and they driving off fast you know what I'm saying. And they tried to put their truck in park.
"Q: And when you say they are reaching for their guns, what do you mean?
"A: They was going to shoot at us.
"Q: Did you see their guns?
"A: I saw them doing just like this (demonstrating).
"Q: And for the record he indicates with his left hand reaching across his body. And to you did that appear that they were going for their guns?
"A: Yes sir."
Answering questions about who was in the truck, White replied he believed it was Tommy Quinn and Stevie Ray Quinn and stated why he believed that. Nothing was edited from this portion of the statement.
The next seven questions and answers were deleted; these questions asked about the actions of White's codefendants during this time.
The questions then focused upon White's activities and the following exchange occurred, with the one word that was digitally removed from the recording underlined:
"Q: And do you know how many shots you fired?
"A: About four.
"Q: No I'm talking on North 30th, how many shots did you fire?
"A: I fired four.
"Q: From the Beretta?
"A: Yes.
"Q: How many shots were fired from the pick-up truck? Did you even notice anyone firing at you?
"A: They didn't get time to.
"Q: When you say they didn't get time to, why didn't they get time to?
"A: Cause we didn't let them get they guns.
"Q: You didn't let them get their guns? Is that correct?
"A: Yes sir."
The questioning then turned to activities after the shooting in which White described how the Quinns had pursued the car White was in and fired shots at a busy intersection. Throughout this passage, references to other defendants and plural pronouns were digitally removed.
Detectives next focused upon the shooting of January 24. White stated that he was in a red Jeep or Blazer. He explained that he went by the Quinns' house that night because earlier that day the Quinns had fired shots near a business known as the "Snak Pak." The following transcript reflects what White said regarding the events near the Quinn home. Again, the underlining reflects the words which were deleted in the recording heard by the jury.
"Q: Now so later in the evening then you guys go by the Quinn's house and what do you see?
"A: We saw them in the field first and we rode through there again and they was ready to chop us down but we didn't let them get to us then.
"Q: Who actually did you see that you recognized?
"A: Mark and Tommy.
"Q: You talking about Marcus or you talking about Mark Brooks?
"A: Mark Quinn and Tommy Quinn.
"Q: And were they in the vacant lot across the street?
"A: Yes sir.
"Q: Were they in a vehicle?
"A: Yep, a gray Chevy but they drove, it was one, it was two gray Chevy's, they drove, one Chevy drove off. And then that's the Chevy that came around the block chasing us in, trying to shoot us.
"Q: Now the very first time you were around the block and it's already dark out is that correct?
"A: Yes sir.
"Q: Are the streetlights on or do you remember?
"A: Yes sir.
"Q: And that's how you were able to tell that it's the Quinn's because it's lit up?
"A: Yes sir.
"Q: Now do you see them with a gun then or do you all get out and start shooting?
"A: Yes sir they did have guns then.
"Q: Do you know who had what?
"A: Tommy Quinn had a 40 I think, it was a handgun, it, he didn't have no weak gun he had a handgun, a 40.
"Q: And Marcus?
"A: He had a AK or Tech.
"Q: Now did they actually shoot at you guys?
"A: Yes sir.
"Q: And where would they have been standing at when they were shooting at you?
"A: By that garage.
"Q: Now where were you at in the Blazer?
"A: In the front seat.
"Q: Front passenger seat?
"A: Yes sir.
"Q: And do you recall who was driving?
"A: Little Keith.
"Q: And in the back, there would of been Ronnie and Bug? Yes or No?
"A: Yes sir.
"Q: Now did all of you get out and start shooting?
"A: No sir.
"Q: So when you were shooting it was from inside the vehicle?
"A: Yes sir.
"Q: And about how many shots did you fire?
"A: About four or five.
"Q: And do you know if you hit anyone?
"A: No sir.
"Q: Who were you aiming at or what were you aiming at?
"A: I was aiming at Marcus; I was aiming at the Chevy that was leaving.
"Q: Which was occupied with two people at that time?
"A: Huh-uh the Chevy that was leaving was Marcus Quinn driving.
"Q: Did you see anybody in the car with him?
"A: No he was by himself.
"Q: All right.
"A: He had on a red skully.
"Q: Now do you remember Shawndell or Samson getting out shooting also?
"A: No sir.
"Q: Were they in front of you or in back of you though?
"A: Front of us.
"Q: So your attention was really directed toward Marcus so if someone else is doing it your really not paying attention?
"A: Yes sir.
"Q: And do you remember about how many shots you heard all together?
"A: They was shooting back. They was a lot of shots I heard. Cause Stevie had a chance, he was trying to run out of the house and that's when we hurried up and drove off."
The statements of the other defendants were also edited to remove any references to White or other defendants. All defendants talked about the ongoing dispute between the Quinns and the defendants.
The State's witnesses included White's roommates and friends who testified to seeing him in or driving vehicles matching the description of the vehicles involved in the two incidents. A roommate also testified that White told her to watch the news "because we smoked that nigger Antwan." She thought White had a 9mm the night he made that statement. Other roommates remembered White talking about the news, and a few days later having other "guys" coming in and out all day with guns and, at one point in the day, coming back to the house and excitedly talking about a white truck. In addition, ballistic testing matched shell casings found at the scenes of the two shooting incidents to guns found at the scene of White's arrest.
Michael White was convicted by a jury of two counts of first-degree murder for the deaths of Joseph Morton and Christopher Union, two counts of attempted first-degree murder relating to the shooting of Marcus Quinn and Lee Brooks, two counts of criminal possession of a firearm, and one count of conspiracy to commit first-degree murder. White was found not guilty of aggravated assault.
The jury also found Shawndell Mays and Peter Davis guilty of various charges. Carvell England and Keith Mays were acquitted of murder, attempted murder, conspiracy to commit murder, and other counts.
SEVERANCE
White argues that the trial court should have granted his request for a separate trial.
As the parties were discussing opening statements, counsel for Shawndell Mays indicated he would advise the jury of the findings of a psychiatrist who determined Mays had Post Traumatic Stress Disorder (PTSD) which had affected his reactions. One of White's codefendants requested a severance because he claimed the psychological defense justifying Mays' actions inferred that the other defendants' actions were unjustified. White's counsel joined in the oral motion for a severance based on antagonistic defenses. The district court denied the motion, finding the defenses were not antagonistic.
Shawndell Mays' counsel did not refer to the psychological examination in the opening statement, but did call the psychiatrist, Dr. William Logan, as a witness. Dr. Logan testified that Shawndell Mays had PTSD resulting from the trauma of being the first one on the scene after his 10-year-old cousin was shot, being threatened by the Quinns, and having several friends shot. Dr. Logan testified that because of PTSD Shawndell might overreact in a situation, perceive danger quicker than others, and react more quickly to defend himself. He also stated that PTSD might be an explanation for why Shawndell fired 18 shots. In the closing arguments, Shawndell's attorney summarized Dr. Logan's testimony as explaining that when Shawndell "believes he's in a high stress situation or safety is threatened, he's prone to overreact and he has problems exercising good judgment."
K.S.A. 22-3202(3) allows two or more defendants to be charged in the same criminal complaint, information, or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting a crime or crimes. K.S.A. 22-3204 provides: "When two or more defendants are jointly charged with any crime, the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney." Severance lies within the sound discretion of the trial court, and should occur when a defendant has established there would be actual prejudice if a joint trial occurred. State v. Butler, 257 Kan. 1043, 1062, 897 P.2d 1007 (1995), modified on other grounds 257 Kan. 1110, 916 P.2d 1 (1996); State v. Hunter, 241 Kan. 629, 633, 740 P.2d 559 (1987). If severance is denied, the party claiming error has the burden to establish the claim and must establish that there was clearly an abuse of discretion. See State v. Pham, 234 Kan. 649, 653, 675 P.2d 848 (1984).
The usual grounds for severance, sometimes referred to as factors establishing sufficient prejudice to mandate severance, are:
"'"(1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) that the confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.'" [Citations omitted.]" Butler, 257 Kan. at 1063.
See Pham, 234 Kan. at 653.
White argues that the district court erred in denying his motion to sever because: (1) the defendants raised antagonistic defenses, (2) evidence in favor of White that would have been admissible in a separate trial was excluded, and (3) the confessions of the codefendants were calculated to prejudice White.
Antagonistic Defenses
White's first argument, antagonistic defenses, has been referred to as the "most compelling ground for severance." State v. Myrick & Nelms, 228 Kan. 406, 416, 616 P.2d 1066 (1980). Antagonistic defenses occur when each defendant is attempting to convict the other or where the defenses conflict to the point of being mutually exclusive or irreconcilable. State v. Anthony, 257 Kan. 1003, 1018, 898 P.2d 1109 (1995). "The classic example of intrinsically antagonistic defenses is where both defendants blame each other for the crime while attempting to defend against the State's case." Pham, 234 Kan. at 655. Short of this type of dichotomy, defenses will not be deemed antagonistic. For example, a dispute over who was the more culpable, such as arguing over who was the triggerman versus the aider and abettor, is not antagonistic. See Myrick, 228 Kan. at 416-17; State v. Sully, 219 Kan. 222, 547 P.2d 344 (1976). Nor are inconsistent trial strategies. Further, the presentation of evidence by one defendant which is inconsistent with the evidence presented by another defendant does not make the defenses antagonistic. Pham, 234 Kan. at 654.
Shawndell Mays did not point the finger at White. Further, neither Dr. Logan's testimony nor Shawndell Mays' defense were irreconcilable with White's assertion that he acted in self-defense and was objectively justified in doing so. White's statement was that he fired four or five shots after he was shot at or observed a known aggressor reaching for a gun. Dr. Logan's testimony did not negate such classic self-defense situations and implicitly strengthened White's contention that the tension between the two factions was intense. While there may have been some inconsistency in the evidence, there was not a dichotomy in the defenses. As presented, the defenses were not mutually exclusive. See Pham, 234 Kan. at 655. Nor has there been any showing of actual prejudice.
The trial court did not abuse its discretion in denying the motion to sever the trial on the basis of antagonistic defenses.
Admission of Codefendants' Redacted Statements
White contends the admission of the extrajudicial statements of his nontestifying codefendants violated his rights under the Confrontation Clause of the Sixth Amendment. White also argues that this is a grounds for severance, as the codefendants' statements were calculated to prejudice his rights.
White made and preserved a general objection to the admission of all the codefendants' redacted statements. Before trial, White had the opportunity to object to any alteration or to request additional editing. Subsequently, he has not made any specific objection to any portion of the statements or to the court's instructions. Rather, he complains that excising parts of the statement resulted in a choppy presentation that made it obvious to the jury that the statements were edited and thereby incriminated White.
A defendant is deprived of his or her Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. Bruton v. United States, 391 U.S. 123, 126, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). Bruton involved two defendants, Evans and Bruton, tried jointly for robbery. Evans did not testify, but the Government introduced into evidence Evans' confession, which stated that he and Bruton committed the robbery. The trial judge told the jury it could consider the confession as evidence only against Evans, not against Bruton. The United States Supreme Court held that, despite the limiting instruction, the introduction of Evans' out-of-court confession at Bruton's trial violated Bruton's right, protected by the Sixth Amendment, to cross-examine witnesses. 391 U.S. at 137. The Court concluded that the nature of some evidence is so "powerfully incriminating" that it overrules the prevailing presumption that a jury will follow instructions. 391 U.S. at 135-36. We followed Bruton in State v. Rodriquez, 226 Kan. 558, 601 P.2d 686 (1979).
However, compliance with Bruton does not mean that extrajudicial statements of nontestifying codefendants can never be admitted at trial. In Richardson v. Marsh, 481 U.S. 200, 211, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987), the United States Supreme Court upheld the use of a confession which had been redacted to remove all references to the codefendant. The case involved a joint murder trial of Marsh and Williams. The State had redacted the confession of Williams so as to omit all indication that anyone other than Williams and a third person had participated in the crime. As redacted, the confession indicated that Williams and the third person had discussed the murder in the front seat of a car while they traveled to the victim's house. The redacted confession contained no indication that any other person was in the car or had participated in the crime. Later in the trial, however, Marsh testified that she was in the back seat of the car.
The United States Supreme Court held that this redacted confession fell outside Bruton's scope and was admissible at the joint trial. The Court distinguished Evans' confession in Bruton as a confession that was "incriminating on its face," and which had "expressly implicat[ed]" Bruton. Richardson, 481 U.S. at 208. By contrast, Williams' confession amounted to "evidence requiring linkage" in that it became incriminating in respect to Marsh "only when linked with evidence introduced later at trial." 481 U.S. at 208. Rejecting contextual implication as a test for whether a statement was admissible, the Court held "that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." 481 U.S. at 211.
Applying this holding, this court has held that "redaction of a confession is proper if any suggestion of a codefendant's involvement in the crime charged can be eliminated from the statement, but generally an edited statement should not be admitted if it explicitly suggests the participation of the complaining defendant." State v. Swafford, 257 Kan. 1099, 1102, 913 P.2d 196 (1996); see also State v. Porter, Green & Smith, 228 Kan. 345, 350, 615 P.2d 146 (1980) (removal of name not sufficient when statement refers to other participants in the crime). In Swafford and its companion, State v. Butler, 257 Kan. 1110, 916 P.2d 1 (1996), we found that presenting a transcript to the jury which showed the deletions by leaving a blank or underlining the space where a word had been, violated the Bruton principle. However, this does not preclude the use of such s