State v. Kirkland ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 122,971
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DEREK ALLEN KIRKLAND,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed January 7, 2022.
Affirmed in part and dismissed in part.
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before GARDNER, P.J., SCHROEDER and CLINE, JJ.
PER CURIAM: Following a bench trial on stipulated facts, the district court
convicted Derek Allen Kirkland of single counts of rape and aggravated criminal sodomy
and multiple counts of sexual exploitation of a child. Kirkland appeals, arguing Kansas'
insanity defense statute is unconstitutional both facially and as applied to him. Kirkland
argues the statute precludes any insanity defense for strict liability crimes and that
because two of his convictions were strict liability crimes, the court should have allowed
him to present a defense based on lack of moral culpability. Kirkland also asserts that the
district court should have allowed him to admit evidence of his mental health to show he
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did not commit his crimes voluntarily as K.S.A. 2015 Supp. 21-5201(a) requires. Finally,
Kirkland argues the district court erroneously denied his motion to suppress his
confession. Because Kirkland failed to preserve several of these claims, we dismiss them.
As to the claims Kirkland preserved, we find no error and affirm.
Factual and Procedural Background
Kirkland fathered a child, P.K., born in October 2008. Kirkland separated from
P.K.'s mother when P.K. was a year old. But Kirkland still saw P.K. often and spent a
significant amount of time with her over the next several years.
In August 2017, then-eight-year-old P.K. told her mother that Kirkland "put his
penis in her vagina." P.K. indicated that Kirkland subjected her to other instances of
sexual abuse, beginning around one year earlier. The next day, P.K. described the abuse
she suffered to a social worker with the Kansas Department for Children and Families.
Following the interview, Detective Dan Ribble located Kirkland at his home and took
him to the Sedgwick County Sheriff's Office for questioning.
Interrogation and Confession
The video of Ribble's interview shows he took Kirkland to an interrogation room
and left him there alone for around an hour. While waiting, Kirkland peeked his head out
the door. Another officer came to the door and Kirkland told him that if he was not being
detained, he needed to go to work. The officer did not say whether Kirkland was free to
leave but went to get Ribble.
When Ribble returned to the interview room, he immediately began asking
Kirkland preliminary questions. Kirkland answered Ribble's questions and did not ask
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whether he was being detained. As a part of these preliminary matters, Kirkland told
Ribble that he had slept for only three to four hours the night before.
When Ribble told Kirkland that he would need to read Kirkland his Miranda
warnings, Kirkland asked whether he was being detained. Ribble responded:
"Uh I mean you're . . . down here.
....
" . . . [W]hether or not you feel you have you know you're able to leave.
....
"You know this . . . advises you of your rights okay?
....
"And so I want to make sure you know what your rights are and like I said I want to
figure out what's going on."
Ribble then read the Miranda warnings and Kirkland agreed to speak to Ribble without
an attorney present.
Ribble confronted Kirkland with P.K.'s allegations of sexual abuse. At first,
Kirkland denied the allegations. He told Ribble he suffered from depression and suicidal
thoughts and that his aunt had recently committed suicide. Kirkland then stated he heard
"voices in [his] head every now and then telling [him] to do things." Right after making
that statement, Kirkland maintained the voices did not instruct him to do things to P.K.
But after Ribble told Kirkland he would get Kirkland help for these problems, Kirkland
confessed to having images of children saved on his phone. And eventually Kirkland
confessed to the other charged crimes as well.
Kirkland also told Ribble that if he did not have "some kind of outlet" and did not
do as the voice instructed, he would suffer physical pain. He also claimed the voices told
him to "touch [P.K.,] do things with her." The voice claimed it would "be fun" and would
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sometimes laugh. Kirkland also told Ribble he could hear the voice laughing at him as he
confessed. Seemingly as the laughter continued, Kirkland explained that he obtained
sexual satisfaction from "the adrenalin[e] rush of doing more [he] kn[e]w was wrong and
. . . that's the only thing [he] could do to make [the voice] go away." It is unclear which
incidents Kirkland referred to, but he claimed to have an out-of-body experience during
some of the incidents: "It's like . . . it was blurred but it was like I was watching it
happen but I couldn't do anything about it, it's like I wasn't there it's like I was behind
myself. . . . I mean it almost didn't seem real."
Near the end of the interview, Kirkland told Ribble that he believed his father had
sexually abused him. He recalled a memory in which his father forced him to shower
with him. Kirkland maintained he began hearing voices a few years after that incident.
Concluding the interview, Ribble asked Kirkland what the voices were saying to him at
that moment. Kirkland replied: "That I did nothing wrong but I know I did. Every time I
say I know I did it laughs at me. It keeps trying to convince me that it's not real it's just
who I am but I know it's not. I don't know what to do."
Kirkland's interview lasted around three hours. When it ended, Ribble placed
Kirkland under arrest. Police executed a search warrant after Kirkland's confession and
found at least 17 images of child pornography on Kirkland's phone.
Pretrial Proceedings
The State initially charged Kirkland with one count each of rape of a child under
14 under K.S.A. 2015 Supp. 21-5503(a)(3); aggravated criminal sodomy with a child
under 14 under K.S.A. 2015 Supp. 21-5504(b)(l); and sexual exploitation of a child under
K.S.A. 2015 Supp. 21-5510(a)(2). The State later amended its complaint to include
another 16 counts of sexual exploitation of a child.
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Kirkland's defense counsel requested a competency evaluation to determine
whether Kirkland was competent to stand trial. The district court granted the request and
suspended proceedings pending the completion of an evaluation at the Larned State
Security Hospital. Dr. Roy Daum's competency report found Kirkland competent to stand
trial. Based on the report, the district court found Kirkland competent to stand trial and
reopened Kirkland's case.
Kirkland filed two pretrial motions. The first asked the district court to find K.S.A.
2015 Supp. 21-5209 unconstitutional because it permits an insanity defense only to
negate whatever intent the charged crime requires. Kirkland also asked the district court
to dismiss the State's charges for rape and aggravated criminal sodomy—counts one and
two of the State's complaint. In an amended motion, Kirkland argued the statute violated
his due process rights under the federal Constitution because it did not allow him to
pursue a defense to his strict liability crimes. In his reply brief, Kirkland maintained that
K.S.A. 2015 Supp. 21-5209 was unconstitutional as applied to counts one and two of the
State's complaint.
The State responded that Kirkland lacked standing to raise a constitutional
challenge because he had proffered no evidence showing he could not form intent
because of mental disease or defect. The State also denied that aggravated criminal
sodomy was a strict liability offense and generally argued the statute was constitutional.
Kirkland's second motion argued that his statements to Ribble were involuntary
and should be suppressed. Kirkland focused mainly on his mental health, claiming he had
suffered from delusions, psychosis, and schizoaffective disorder when speaking to
Ribble. Kirkland also pointed out that he had not slept, that he had not received an
adequate answer about his detention status, and that Ribble had deceived him by claiming
he wanted to help him.
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The district court held a combined motions and preliminary hearing. Daum
testified about Kirkland's mental health. Daum explained that he did not know whether
Kirkland had been in active psychosis during Ribble's interrogation, but he had diagnosed
Kirkland with schizoaffective disorder, posttraumatic stress disorder, personal history of
sexual abuse, and alcohol and cannabis use disorders. Daum testified that Kirkland had "a
horrific childhood background" including his father raping and sodomizing him. Daum
also explained that while he did his evaluation, Kirkland had experienced active
hallucinations that manifested as voices commanding him to harm others.
The district court denied both motions. The court held that Kirkland's motion to
find K.S.A. 2015 Supp. 21-5209 unconstitutional failed as a matter of law based on the
holdings in State v. Kahler, 307 Kan. 374, 410 P.3d 105 (2018), cert. granted 139 S. Ct.
1318 (2019), and State v. Bethel, 275 Kan. 456, 66 P.3d 840 (2003). The United States
Supreme Court later affirmed the Kansas Supreme Court in Kahler v. Kansas, 589
U.S.__, 140 S. Ct. 1021, 206 L. Ed. 2d 312 (2020) (finding that due process does not
require Kansas to adopt an insanity test turning on a defendant's ability to recognize that
one's crime was morally wrong). The district court acknowledged that Kirkland suffered
from mental health issues but found they did not affect him during his interview to a
degree that would render his statements involuntary. And the district court found that
because Kirkland had made his statements to Ribble voluntarily, his confession was
admissible.
Trial and Sentencing
Kirkland then waived his right to a jury trial and agreed to a bench trial on
stipulated facts. Those facts established that Kirkland confessed to committing each of
the charged crimes, and that Kirkland stated during his confession that he heard voices in
his head telling him to touch P.K. and to not rest until he did what the voices told him to
do.
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The district court found Kirkland guilty and convicted him of all crimes charged.
At sentencing, Kirkland requested a downward durational departure, citing his mental
health as a substantial and compelling reason to impose a determinative, on-grid
sentence. But the district court denied that request and imposed a hard-25 life sentence
for his rape and aggravated criminal sodomy convictions, plus another 32-month term of
imprisonment for his 17 solicitation of a child convictions.
Kirkland timely appeals.
Is K.S.A. 2015 Supp. 21-5209 Unconstitutional as Applied to Kirkland?
Kirkland first raises an as-applied constitutional challenge to K.S.A. 2015 Supp.
21-5209, arguing the statute unconstitutionally prevented him from presenting an insanity
defense for his strict liability crimes. That statute states:
"It shall be a defense to a prosecution under any statute that the defendant, as a
result of mental disease or defect, lacked the culpable mental state required as an element
of the crime charged. Mental disease or defect is not otherwise a defense." K.S.A. 2015
Supp. 21-5209.
Kirkland acknowledges that this statute allows evidence of mental disease or defects only
to negate mental culpability. But Kirkland contends that due process requires some form
of an insanity defense for every defendant, so a defendant charged with a strict liability
crime, which requires no mental culpability, should have a right to rely on a moral
culpability defense.
The State concedes that rape under K.S.A. 2015 Supp. 21-5503(a)(3) is a strict
liability crime, but it contends that Kirkland received due process because he presented
evidence of his mental illness at sentencing. But the State denies that aggravated criminal
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sodomy is a strict liability offense and asks us to dismiss that portion of Kirkland's claim.
Citing Kahler, 140 S. Ct. at 1037, the State also contends that because Kirkland was not
entitled to a defense turning on moral culpability, he cannot show reversal is warranted
here.
Before addressing these claims, we must first consider whether we have
jurisdiction to consider Kirkland's as-applied challenge and whether he adequately
preserved this issue.
Jurisdiction
The State contends that Kirkland lacks standing to raise a constitutional challenge
to K.S.A. 2015 Supp. 21-5209. Standing is a component of subject matter jurisdiction,
which a party may raise for the first time on appeal. State v. Gilbert, 292 Kan. 428, 431,
254 P.3d 1271 (2011). The State argues that Kirkland lacks standing because "he does
not argue that he lack[ed] the cognitive capacity to form criminal intent." Kirkland admits
he does not understand the State's position but contends the application of the statute
directly caused his loss of a fundamental right to present some type of an insanity
defense.
Underlying the dissonance between the parties' standing arguments is a procedural
error Kirkland made in the district court. Kirkland never filed a notice of intent to rely on
an insanity defense. See K.S.A. 22-3219(1) ("Evidence of mental disease or defect
excluding criminal responsibility is not admissible upon a trial unless the defendant
serves upon the prosecuting attorney and files with the court a written notice of such
defendant's intention to assert the defense that the defendant, as a result of mental disease
or defect lacked the mental state required as an element of the offense charged."). Instead,
Kirkland moved to find K.S.A. 2015 Supp. 21-5209 unconstitutional and then proceeded
as if the district court would preclude any evidence related to his mental illness unless he
8
succeeded on that motion. And although the district court upheld K.S.A. 2015 Supp. 21-
5209 as constitutional, citing our Supreme Court's opinions in Bethel and Kahler, it did
not explain its decision or the applicability of that statute in strict liability cases. Yet
neither party requested additional findings from the district court.
Still, Kirkland's failure to file notice of intent to rely on an insanity defense does
not show that Kirkland lacks standing. As a prerequisite to attacking the constitutionality
of a statute, an appellant must show personal harm from the statute's application. See
State v. Stoll, 312 Kan. 726, 734, 480 P.3d 158 (2021) (quoting Sierra Club v. Moser, 298
Kan. 22, 33, 310 P.3d 360 [2013]. A "'litigant establishes a cognizable injury when the
litigant establishes 'a personal interest in a court's decision and that he or she personally
suffers some actual or threatened injury as a result of the challenged conduct.'" Stoll, 312
Kan. at 734. "A party cannot raise a challenge to statute's constitutionality if the claimed
defect does not apply to that party." State v. Gleason, 305 Kan. 794, Syl. ¶ 5, 388 P.3d
101 (2017).
True, the insanity defense provided in K.S.A. 2015 Supp. 21-5209's first sentence
(establishing an insanity defense when the defendant, as a result of mental disease or
defect, lacked the culpable mental state required as an element of the crime charged) did
not apply to Kirkland's strict liability crimes, because they require no culpable mental
state. But the second sentence of the statute (stating that mental disease or defect is not
otherwise a defense) prohibits all other insanity defenses. So by denying Kirkland's
motion to find the statute unconstitutional, the district court effectively prevented him
from pursuing a moral culpability defense. That constitutes personal harm, giving
Kirkland standing to raise this claim.
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Preservation
We next determine whether Kirkland preserved his as-applied challenge to our
insanity statute. Preservation issues are subject to unlimited review. See State v. Swint,
302 Kan. 326, 335-36, 346-47, 352 P.3d 1014 (2015) (applying de novo standard in
review of this court's conclusions on preservation and abandonment). Normally issues not
raised before the district court cannot be raised on appeal. State v. Kelly, 298 Kan. 965,
971, 318 P.3d 987 (2014). Yet parties may raise constitutional issues for the first time on
appeal if they successfully argue that a recognized exception applies. "'To preserve an
issue for appellate review . . . it must be accompanied by argument and supported by
pertinent authority or an explanation why the argument is sound despite the lack of
authority or existence of contrary authority.' Swint, 302 Kan. at 346." State v. Alvarez,
309 Kan. 203, 209, 432 P.3d 1015 (2019). Still, even when a party fully argues why we
should apply an exception, the decision to review an unpreserved claim remains a
prudential one for the court. State v. Gray, 311 Kan. 164, 169, 459 P.3d 165 (2020).
When Kirkland moved the district court to find K.S.A. 2015 Supp. 21-5209
unconstitutional, he argued the statute violated his substantive and procedural due process
rights because it abolished the insanity defense for strict liability crimes. But Kirkland did
not state that he was raising an as-applied challenge to the statute. And the court denied
his request to find the statute unconstitutional without addressing the nature of strict
liability crimes or Kirkland's particular circumstances or mental condition. The
circumstances show that the district court treated Kirkland's motion as raising only a
facial challenge. Still, Kirkland did not ask the district court to provide additional
findings or clarification to allow appellate review. And our Supreme Court has repeatedly
emphasized that it is the defendant's responsibility to ensure the district court makes the
factual findings necessary for appellate review. See, e.g., State v. Patterson, 311 Kan. 59,
72, 455 P.3d 792 (2020); State v. Cervantes-Puentes, 297 Kan. 560, 565, 303 P.3d 25810
(2013) (same). This responsibility goes beyond merely raising a constitutional claim.
State v. Espinoza, 311 Kan. 435, 437, 462 P.3d 159 (2020).
As a result, the record does not show what, if any, consideration the district court
gave to this issue. We find Kirkland did not raise the issue to the district court as an as-
applied challenge to the constitutionality of K.S.A. 2015 Supp. 21-5209. Classifying a
lawsuit as facial or as-applied affects the extent to which the invalidity of the challenged
law must be shown and the corresponding breadth of the remedy. State v. Hinnenkamp,
57 Kan. App. 2d 1, 4, 446 P.3d 1103 (2019) (denying review of the appellant's
unpreserved facial challenge) (quoting Bucklew v. Precythe, 587 U.S. __, 139 S. Ct.
1112, 1127, 203 L. Ed. 2d 521 [2019]), rev. denied 312 Kan. 897 (2020). Unlike a facial
challenge to a statute, an as-applied challenge "contests that application of a statute to a
particular set of circumstances" and thus "'necessarily requires findings of fact.' See State
v. Farmer, No. 98,997, 2008 WL 5401338, at *4 (Kan. App. 2008) (unpublished
opinion)." Hinnenkamp, 57 Kan. App. 2d at 4. When, as here, the district court has not
made those findings of fact, we may find the as-applied issue unpreserved for appeal.
See, e.g., Hinnenkamp, 57 Kan. App. 2d at 5. Because the record lacks the factual
findings necessary to our review of as as-applied challenge, we dismiss Kirkland's as-
applied challenge to K.S.A. 2015 Supp. 21-5209 as unpreserved. Cf. Espinoza, 311 Kan.
at 437-38 (finding as-applied challenge to the constitutionality of a sentence not
amenable to appellate review because defendant did not object to district court's failure to
make factual findings at sentencing and failed to move for findings under Kansas
Supreme Court Rule 165 [2020 Kan. S. Ct. R. 215]).
Kirkland argues that we may still consider his claim under two exceptions to the
general preservation rule: that his newly asserted theory is a question of law arising on
admitted facts and is finally determinative of this case; and that review is necessary to
serve the ends of justice or prevent the denial of his fundamental rights. See State v.
Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014) (listing commonly recognized reasons
11
courts apply to consider unpreserved claims). And we could do so, but the decision to
review an unpreserved claim is prudential. Gray, 311 Kan. at 169. In short, because
Kirkland failed to raise and develop his constitutional challenge before the trial court, we
lack the necessary factual and legal analysis in the record to adequately address his as-
applied constitutional challenge. This court does not make factual findings; it reviews
those made by district courts. State v. Hutto, 313 Kan. 741, 746, 490 P.3d 43 (2021); see
State v. Vonachen, 312 Kan. 451, 457-58, 476 P.3d 774 (2020) (dismissing as
unpreserved defendant's claim that K.S.A. 2019 Supp. 21-5209 unconstitutionally
prevented him from raising a moral culpability defense because defendant failed to get
the necessary factual findings or show his claims implicated a fundamental right).
Kirkland maintains that the facts we need to decide this issue are apparent in the
record. True, the State charged Kirkland with a strict liability offense, but that is not the
only fact Kirkland relies on. Instead, Kirkland maintains that the court should have
permitted him to rely on a moral culpability defense. But our review of the record shows
conflicting or inadequate evidence about whether that type of defense would have been
factually appropriate, even assuming it was legally appropriate. We offer two examples to
support that conclusion. First, although Kirkland told Ribble that he committed his crimes
because a voice in his head directed him to, he also admitted to Ribble that he knew what
he did was wrong, he admitted remorse and disgust for his actions, and he said he found
sexual satisfaction in committing acts he knew were wrong. Second, Kirkland relied only
on Daum's evaluation which was solely to determine Kirkland's competency to stand trial
and not to proffer evidence of Kirkland's insanity under a moral culpability standard.
Daum did not opine whether Kirkland was insane under any test. Nor did Kirkland
proffer any evidence that he lacked the ability to know right from wrong, i.e., lacked
moral capacity.
These unresolved matters show that Kirkland's as-applied challenge rests on
undeveloped or contradicted facts and does not raise a purely legal question. This court
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does not engage in the type of fact-finding needed here. See State v. Allen, 314 Kan. 280,
__, 497 P.3d 566, 571 (2021) (Reversing Kansas Court of Appeals decision to decide
unpreserved issue based on exceptions where the "limited appellate record reflects
unresolved factual representations material to those issues' consideration. And this
undeveloped record is not the State's fault because Allen never raised these claims with
the district court where they could be properly fleshed out."); State v. McMullen, 290
Kan. 1, 4, 221 P.3d 92 (2009) (appellate court does not reweigh evidence, resolve
conflicting evidence, or assess the credibility of the witnesses).
Finally, Kirkland asserts that the panel should not dismiss this issue as
unpreserved because the State did not challenge it as unpreserved, citing State v.
Valdiviezo-Martinez, 313 Kan. 614, 624, 486 P.3d 1256 (2021). There, the Kansas
Supreme Court addressed the requirement that a defendant must raise a statute of
limitations defense at trial to avoid waiving the defense and to preserve it for appeal. But
the State had not argued on appeal that the defendant had waived its statute of limitations
defense at trial—it raised no preservation or any other procedural concern. Kirkland
apparently relies on the following language:
"And, if an issue is not jurisdictional, a party waives it by failing to raise it before the
Court of Appeals or in a petition or cross-petition for review of a Court of Appeals'
decision, even if the issue itself relates to preservation. See State v. Boeschling, 311 Kan.
124, 128, 458 P.3d 234 (2020). This means the State waived any preservation argument."
313 Kan. 624.
But Kirkland takes this holding out of context. This decision was based on Rule
8.03(b), (h)(1) (2018 Kan. S. Ct. R. 53), which governs our Supreme Court's review of
this court's decisions. See State v. Boeschling, 311 Kan. 124, 128, 458 P.3d 234 (2020).
Because the State had not raised the waiver issue to the Kansas Court of Appeals, and
had not cross-petitioned on that issue, the issue was not properly before the Kansas
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Supreme Court on the defendant's petition for review. But under Gray, 311 Kan. at 169,
the State's position before us does not preclude our exercise of discretion not to reach an
unpreserved issue. We thus dismiss Kirkland's as-applied challenge as unpreserved.
Is K.S.A. 2015 Supp. 21-5209 Facially Unconstitutional?
Kirkland next raises a facial challenge to K.S.A. 2015 Supp. 21-5209, our insanity
defense. He concedes that the Kansas Supreme Court decided some of his substantive due
process arguments against him in Kahler but argues that two of his arguments—rooted in
sections 1 and 5 of the Kansas Constitution Bill of Rights—have never been decided.
The State responds that this issue is unpreserved, and Kirkland admits that he did
not raise his arguments regarding sections 1 and 5 of the Kansas Constitution Bill of
Rights in the district court. He thus has no right to raise them on appeal. See State v.
Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018) (discussing general rule that
constitutional claims cannot be raised for the first time on appeal). And although
Kirkland asserts exceptions to show appellate review is appropriate, we decline to apply
those exceptions here. See State v. Harris, 311 Kan. 371, Syl. ¶ 1, 461 P.3d 48 (2020)
("Generally, an appellate court does not address issues for the first time on appeal, but
there are limited exceptions within defined parameters."); Gray, 311 Kan. at 169.
Kirkland concedes that the only portion of his facial challenge that is adequately
preserved for appellate review is the one already considered in Kahler. Kirkland argued
to the district court that K.S.A. 2015 Supp. 21-5209 violates his substantive due process
rights, so the court had to permit him to use the right-from-wrong rule, or moral
culpability test, commonly called the M'Naghten test.
But Kirkland concedes that the Supreme Court decided this argument against him
in Kahler:
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"[C]onstitutionalizing the moral-incapacity standard, as Kahler requests, would require
striking down not only the five state laws like Kansas's . . . , but 16 others as well . . . .
And with what justification? The emergence of M'Naghten's legal variant, far from
raising a due process problem, merely confirms what Clark already recognized. Even
after its articulation in M'Naghten (much less before), the moral-incapacity test has never
commanded the day. Clark, 548 U.S. at 749.
....
"We therefore decline to require that Kansas adopt an insanity test turning on a
defendant's ability to recognize that his crime was morally wrong. Contrary to Kahler's
view, Kansas takes account of mental health at both trial and sentencing. It has just not
adopted the particular insanity defense Kahler would like. That choice is for Kansas to
make—and, if it wishes, to remake and remake again as the future unfolds. No insanity
rule in this country's heritage or history was ever so settled as to tie a State's hands
centuries later." 140 S. Ct. at 1036-37.
See Bethel, 275 Kan. at 473 ("We conclude that the affirmative insanity defense is a
creature of the 19th century and is not so ingrained in our legal system to constitute a
fundamental principle of law.").
In short, to the extent Kirkland preserved his claim that K.S.A. 2015 Supp. 21-
5209 is facially unconstitutional, that claim is defeated by Kahler and Bethel.
Did the District Court Err in Excluding Evidence about Kirkland's Mental Health to
Negate the Actus Reus Element of His Crimes?
Kirkland next contends that the district court should have allowed him to present
evidence of his mental disease or defect to prove he did not commit a voluntary act as
required under K.S.A. 2015 Supp. 21-5201(a). That statute provides: "A person commits
15
a crime only if such person voluntarily engages in conduct, including an act, an omission
or possession."
But, as above, Kirkland failed to preserve this issue for appeal. He admits that he
did not raise this issue in the district court and failed to proffer any evidence showing that
a mental disease or defect prevented him from acting voluntarily as defined by the
statute. So the record lacks the findings necessary for us to determine whether this
defense was factually appropriate. We agree with the State that because this issue is
evidentiary, we should not consider it for the first time on appeal. See Gray, 311 Kan. at
169; State v. Bliss, 61 Kan. App. 2d 76, 93-96, 498 P.3d 1220 (2021). Kirkland failed to
raise this issue in the district court, and although Kirkland argues exceptions, save his
failure to preserve this issue, we find it unwise to apply them. We thus dismiss Kirkland's
claim under K.S.A. 2015 Supp. 21-5201(a) as unpreserved.
Did the District Court Err in Denying Kirkland's Request to Suppress His Statements as
Involuntary?
Finally, Kirkland contends that the district court should have suppressed his
statements to Ribble because he made them involuntarily as the result of mental illness.
Appellate courts review the factual underpinnings of a district court's decision on a
motion to suppress evidence for substantial competent evidence and its ultimate legal
conclusion de novo. But this court does not reweigh evidence, assess witness credibility,
or resolve conflicting evidence. State v. Gibson, 299 Kan. 207, 215-16, 322 P.3d 389(2014).
The State bears the burden to show that defendant's incriminating statements were
freely and voluntarily given:
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"When challenged, the State has the burden to prove by a preponderance of the
evidence that a defendant's incriminating statements were freely and voluntarily given.
And to determine that, a trial court typically looks at the totality of the circumstances
surrounding the statements and considers the following nonexclusive factors: (1)
defendant's mental condition; (2) the interview's manner and duration; (3) defendant's
ability to communicate on request with the outside world; (4) defendant's age, intellect,
and background; (5) the officer's fairness in conducting the interview; and (6)
defendant's fluency with the English language." Vonachen, 312 Kan. at 464.
Kirkland challenges the district court's findings under factors one, two, three, and five,
but he concedes that factors four and six favor the State's position.
Factor 1 - Defendant's Mental Condition
Kirkland suggests reversal is warranted based on his mental condition alone.
Kirkland argues the district court should have assumed his statements were not voluntary
because he told Ribble he was "actively suffering from mental-health issues, specifically
depression and suicidal thoughts."
But our Supreme Court rejected a similar argument in Bethel:
"Bethel's position as stated in his brief is that he 'was insane at the time of the
interview,' and, as a result, under Kansas law his statements should have been
suppressed. Bethel's contention, however, is at odds with established law of this state.
'Mental disability alone is not determinative of voluntariness' of a confession. State v.
Caenen, 270 Kan. 776, Syl. ¶ 3, 19 P.3d 142 (2001). In all cases, including cases of
mental disorders or illness, where the voluntariness of a confession is at issue, the totality
of the circumstances is examined. 270 Kan. at 783-84." 275 Kan. at 475.
The existence of a mental health diagnosis does not necessarily render statements
involuntary. See State v. Woods, 301 Kan. 852, 867, 348 P.3d 583 (2015) (noting prior
17
schizophrenia diagnosis yet holding "there is no evidence [the defendant's] responses
were unknowing or involuntary because he was suffering from schizophrenia"); State v.
Edwards, 291 Kan. 532, 547, 243 P.3d 683 (2010) (declining to "opine that a person with
bipolar disorder who is suffering a major depressive episode cannot freely, voluntarily,
and knowingly give a statement to the police" when no such evidence was presented in
the district court).
The district court considered Kirkland's mental condition before denying his
motion to suppress. In its lengthy analysis, the district court acknowledged that Kirkland
suffered from mental health issues but determined that under the circumstances, those
issues did not prevent him from acting knowingly and voluntarily:
"Essentially what the Court is looking at is to see if the defendant's statements are
knowing and voluntary. And so first, the Court must look at the defendant's mental
condition. This is probably essentially the thrust of the defense's position. I would readily
acknowledge that in the video that Mr. Kirkland was crying. I don't find that to be
necessarily an indication of a mental health issue as much as just perhaps the stress of
being interrogated by the police. Perhaps it was the stress of coming to grips with some
of the statements that he had made with regard to his behavior, but the crying itself is not
a mental health—does not indicate a mental health condition.
"Dr. Daum did make a diagnosis of Mr. Kirkland. But I think it was Dr. Daum's
statements during his testimony and it would secondly be the position of this Court that
the diagnosis in and of itself is not the end of the analysis. The video does not show any
behavior that leads this Court to believe that Mr. Kirkland was suffering from delusions
or hallucinations. I'm not ignoring, of course, his statements. I will readily acknowledge
that he stated that he was hallucinating with regard to hearing a voice that was directive.
"I will readily acknowledge that he stated that he had been awake for 15 hours,
although I don't find that too compelling in that if a person slept for eight hours a day,
they will be awake for longer than that. But during his statements in the video the
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defendant was lucid, rash, alert and was responding appropriately to questions. I believe
that happening was used in the analysis in the Bethel case.
"He was not reacting to unseen stimuli. His hallucinations in this case were self-
reported not only in the interview but also to Dr. Daum. I thought it was interesting that
in my analysis of the report that was attached to defense motion [and] in my listening to
Dr. Daum that he didn't seem able to verify that this behavior, specifically the
hallucinations and delusions, would support a diagnosis of some sort of psychotic
behavior or psychosis that was observed by others.
"In fact, his behavior while at Larned during the evaluation process did not
indicate that [behavior was not observed] while he was . . in the dormitory type
arrangement during the analysis process. So I cannot find that his mental health diagnosis
in and of itself would prevent him from making statements that were knowing and
voluntary.
"One other thing troubling to me is in Dr. Daum's analysis or his report, pardon
me, he states that there was a large amount of alcohol and illegal drugs taken by Mr.
Kirkland. Mr. Kirkland self-reports this. Dr. Daum cites this intake of drugs and alcohol
in his report, but what I could not find in his report was how that might affect Mr.
Kirkland's mental health and how . . . the lack of that during his incarceration and during
his hospitalization and recover[y] . . . would affect his mental condition.
"I would expect Mr. Kirkland to be more lucid, think more clearly, those type of
things when he is not taking in large amounts of alcohol or illegal drugs. So I am satisfied
that his mental health condition, the diagnosis itself and the testimony of Dr. Daum did
not convince this Court that the mental condition would prevent him from making
knowing and voluntary statements."
The record adequately supports these findings. The video of the interview shows
Kirkland was crying and telling Ribble that he could hear a directive voice during his
interview, but Kirkland did not react to the voice in a way that would imply his
confession was involuntary. Ribble testified that Kirkland did not seem distracted and
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that he instead actively engaged in the conversation. Ribble also testified that Kirkland
did not seem to be under the influence of drugs or alcohol during his interview. And
Kirkland told Ribble he had taken no medications before the interview.
Finally, Daum testified that Kirkland's diagnoses were based at least in part on
Kirkland's personal statements. Daum's testimony about the techniques used by the
psychologists and psychiatrists that examined Kirkland suggests he had more confidence
in the accuracy of the testing process than the district court appeared to have in its
consideration of this factor. Still, the record shows the district court considered Daum's
diagnoses, Kirkland's statements to Ribble about the voice in his head, and Kirkland's
lack of sleep in determining the voluntariness of Kirkland's confession.
The bottom line is that Kirkland fails to explain how his diagnoses render him
more susceptible to coercion. In Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515,
93 L. Ed. 2d 473 (1986), the United States Supreme Court clarified that "police
overreaching" is an "integral element" to finding a confession involuntary under the Due
Process Clause of the Fourteenth Amendment to the United States Constitution. It held
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. at 167. The Kansas Supreme Court has "recognized Connelly as
controlling precedent," including Connelly's holding that "'while mental condition is
surely relevant to an individual's susceptibility to police coercion, mere examination of
the confessant's state of mind can never conclude the due process inquiry.'" State v.
Barrett, 309 Kan. 1029, 1044, 442 P.3d 492 (2019). In other words, without coercive
police activity, a statement cannot be "rendered involuntary based on [a defendant's]
mental condition alone." 309 Kan. at 1044-45. Because Kirkland shows no coercive acts
by the State, this factor supports the district court's finding.
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Factor 2 - Interview's Manner and Duration
Kirkland maintains that he suffered severe stress because of the overall duration of
the interview and the long time he was left alone in the interview room.
The interview lasted around 3 hours and Kirkland sat alone for 70 of those
minutes. That is not an unduly long time. See State v. Walker, 308 Kan. 409, 422, 421
P.3d 700 (2018) (finding three and a half hours shorter than many other periods of
interrogation found voluntary); State v. Harris, 293 Kan. 798, 809, 269 P.3d 820 (2012)
(finding a confession voluntary when a defendant sat in the interview room for a little
over 3 hours before being questioned for 90 minutes); State v. Brown, 258 Kan. 374, 392-
95, 904 P.2d 985 (1995) (finding a confession voluntary when defendant was in custody
for four hours before being questioned by officers for at least an hour). Nor did Kirkland
present evidence to establish he suffered severe stress or that stress "probably made [his]
hallucinations more vivid."
In its review, the district court correctly noted the duration of the interview and the
fact that Ribble left the room several times. The record also supports the district court's
findings that Ribble was the only person in the room with Kirkland, that he did not coerce
or intimidate Kirkland, and that he offered Kirkland food, water, and bathroom breaks.
As the district court found, this factor favors the voluntariness of Kirkland's statements.
Factor 3 - Ability to Communicate with Outside World
Kirkland next argues that he was prevented from communicating with the outside
world.
But Kirkland never asked to communicate with anyone outside the interview room
or sheriff's office. Although Kirkland told an officer that he needed to go to work if he
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was not being detained, he never asked to leave. Moreover, Ribble told Kirkland that he
was free to leave. While isolation from the outside world is one of the factors we consider
in determining whether an interview was coerced, "it is to be expected that police will
take steps to limit the ability of potential witnesses and suspects to communicate and,
potentially, conspire during an investigation." State v. Walker, 283 Kan. 587, 598, 153
P.3d 1257 (2007). We find no error here.
Factor 5 - Officer's Fairness in Conducting the Interview
In determining that Ribble conducted the interview fairly, the district court found
that Ribble never tried to intimidate or frighten Kirkland. And Kirkland did not show that
he felt intimidated or threatened. Kirkland does not challenge these findings. He instead
focuses on Ribble's vague response to his question about his detention status and Ribble's
insincere statements that he wanted to help Kirkland.
Ribble's response to Kirkland's question whether he was being detained, while
arguably improper, did not impact the overall fairness of Ribble's conduct. Ribble
truthfully informed Kirkland of the purpose of his questioning before and during the
interview. And Ribble's statement that he would get Kirkland help, whether sincere or
not, would not alone render Kirkland's confession involuntary. See State v. Wakefield,
267 Kan. 116, 127, 977 P.2d 941 (1999) (misrepresentations made by interrogating
officers do not render a confession involuntary "so long as the defendant's statements
were the product of his or her free and independent will"). And even combined with
Ribble's other statement, this comment does not show Kirkland misunderstood the
purpose of the interview or Ribble's role in gathering evidence related to P.K.'s
allegations. Viewing the totality of circumstances, we find no unfairness in how Ribble
conducted the interview.
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Conclusion
Under the totality of the circumstances presented, we find no error in the district
court's findings or conclusion that Kirkland made his incriminating statements
voluntarily. Cf. Vonachen, 312 Kan. at 465-66 (upholding admission of confession given
by juvenile defendant diagnosed with mental illnesses, but without specifically
addressing mental illness in suppression analysis); Bethel, 275 Kan. at 477 (affirming
district court's denial of motion to suppress mentally ill defendant's confession based on
appellate review of videotaped interrogation). We thus affirm the district court's
admission of Kirkland's statements.
Affirmed in part and dismissed in part.
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