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State v. Hebert1/16/2004
accused on request to communicate with the outside world; (4) the accused's age, intellect, and background; and (5) the fairness of the officers in conducting the investigation. 267 Kan. at 270.
There is no indication that the accused's mental condition was impaired when he made the post-Miranda statement. Although he complained of being hit on the head when he was arrested, he said he was not confused or injured and did not need to see a doctor. The agent acted in a professional, calm, and non-threatening manner throughout the interview. The defendant's handcuffs were removed during the interview, and the entire interview lasted under 2 hours. Although he was informed of his right to have a lawyer present, the defendant never asked to communicate with his lawyer or anyone else during the interview. The defendant was 22 years old at the time of the interview, of normal intelligence, and had a criminal history. Nothing in the manner of questioning revealed an intent by the agent to trick or deceive the defendant into making a statement.
Nothing in these factors suggests that the defendant's post-Miranda statements were involuntary. As such, substantial competent evidence supports the district court's admission of the post-Miranda statements at trial. See State v. Makthepharak, 276 Kan. 563, 78 P.3d 412 (2003). Our conclusion also renders the admission of the defendant's pre-Miranda statements harmless.
(2) ADMISSION OF OFFICERS' CHANGED TESTIMONY
The defendant claims that he was prejudiced by the change in testimony by Sheriff Caldwell and Detective Kemp regarding whether or not Deputy Kenney had his gun drawn. The defendant's theory of defense was based on showing that the shooting was neither premeditated nor intentional but, rather, due to the panic of seeing Deputy Kenney's gun.
A. Standard of Review
Appellate courts review the trial court's admission of evidence for abuse of discretion. State v. Sims, 262 Kan. 165, 170, 936 P.2d 779 (1997). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable or, in other words, when no reasonable person would have taken the position that was taken by the trial court. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 804, 897 P.2d 123 (1995).
B. The Trial Court Did Not Err in Allowing the State to Recall Sheriff Caldwell
At the preliminary hearing, the following exchange between defense counsel and Sheriff Caldwell took place regarding the location of Deputy Kenney's gun at the time he ascended the stairs into the defendant's attic:
"Q: Jim had his gun out at the time?
"A: I can't answer that. I don't know.
"Q: Was he carrying a weapon himself?
"A: He was carrying a gun. I can't tell you if he had it drawn or not. He had the dog so he may not have had it out. I can't answer you, I don't know."
The question of whether Deputy Kenney had his gun drawn did not come up during Sheriff Caldwell's direct examination at trial on January 12, 2001, and the defendant now claims that he did not cross-examine Sheriff Caldwell at trial because nothing in his direct examination contradicted the testimony from his preliminary hearing. Five days after he testified, Sheriff Caldwell approached the prosecutors and told them that he now remembered that Deputy Kenney had not drawn his weapon. Because the prosecutors did not know that Sheriff Caldwell would change his testimony, and because the State had not yet rested its case, the trial court on the State's motion allowed Sheriff Caldwell to testify that he remembered that Deputy Kenney had a flashlight, not a gun, in his hand.
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