Kauffmann v. Commonwealth ( 1989 )

Benton, J.,

concurring in part, dissenting in part, and concurring in the judgment of reversal.

I join in those parts of the opinion which hold: (1) that the child’s statements were hearsay and inadmissible, (2) that the trial judge did not err in quashing the subpoena duces tecum, and (3) that the trial judge did not err in refusing to instruct the jury as to the offenses of taking indecent liberties with a child and sexual battery. Accordingly, I join in the judgment reversing the conviction and remanding for a new trial if the Commonwealth be so advised. I dissent from the remainder of the opinion, however, because I would also hold (1) that the confessions were inadmissible, and (2) that the trial judge erred in refusing the lesser included offense instruction concerning contributing to the delinquency of the child.

I

I agree with the majority that Oregon v. Mathiason, 429 U.S. 492 (1977), suggests that Kauffmann’s initial statement to the police was not rendered inadmissible solely because the police failed to give Kauffmann Miranda warnings. The record does not reflect that Kauffmann “was in custody for purposes of the Miranda rule.” Id. at 496. Kauffmann asserts, however, that the detective who questioned him “had promised not to prosecute him,” thus, raising the additional question whether Kauffmann’s statements were involuntary and unknowing.

The relevant inquiry is whether, in fact, the . . . statement was . . . voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative.

Oregon v. Elstad, 470 U.S. 298, 318 (1985).

Detective Urban arrived at Kauffmann’s residence within three hours of the daughter’s suicide and shortly after Kauffmann and his wife had viewed their daughter’s body in the hospital. The detective had been informed by the daughter’s friend of the daughter’s statement that, “Dad molests me in the morning before school.” The detective told Kauffmann that it was routine procedure for the police to examine the belongings of persons who have committed suicide and asked to search the child’s room. The detective was, in fact, looking for any items that would further incriminate Kauffmann. After the detective found the notebook and read it, he asked Kauffmann to follow him to the police station.

At the station, the detective interviewed Kauffmann for a period of an hour and forty-five minutes, during which time Kauffmann was emotional and wept. The detective testified that Kauffmann “wanted to know, if he told [Urban] certain things, how did he know that [the police] wouldn’t come back and do something to him at a later date; and secondly, were we going to tell his wife.” The detective assured Kauffmann that he would not tell his wife and further “told him that I felt that, just due to what happened that day, there was enough grief and hardship sitting on his shoulders right now.” The detective further testified that he had no intention at that time of obtaining an arrest warrant. Visibly upset and weeping, Kauffmann then admitted to the detective that he had fondled his daughter on several occasions. The detective did not give Miranda warnings but took notes of the conversation.

Two days later, the day prior to the daughter’s funeral, Kauffmann and his wife were summoned to the police station to talk further with the detective and a mental health social worker. The detective said the meeting with the mental health social worker was “set up in order to help [Kauffmann] and his wife deal with this thing.” When they arrived, Kauffmann was separated from his wife and interviewed by Detective Urban in the presence of the mental health social worker. At this time the detective read Miranda rights to Kauffmann. Kauffmann, who was again very emotional, upset, and weeping, told them that he had sexually fondled his daughter.

The Commonwealth bears the burden of proving by a preponderance of the evidence that Kauffmann’s statements were voluntary. Rodgers v. Commonwealth, 227 Va. 605, 608, 318 S.E.2d 298, 300 (1984). In making the determination whether the Commonwealth has borne its burden, the court must consider “any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will.” Elstad, 470 U.S. at 309. A trial court errs when it admits as evidence a “confession . . . induced by the hope, inspired by what [a law enforcement agent] had said to [an accused], that he would thereby escape the extreme penalty of the law for this offense.” Jackson v. Commonwealth, 116 Va. 1015, 1019, 81 S.E. 192, 193 (1914). Thus, whenever a statement is “induced by the hope of the gain of some advantage or to avoid some evil in reference to the proceeding against the declarant,” it is inadmissible. Id. at 1020, 81 S.E. at 194. Thus, in Belcher v. Commonwealth, 160 Va. 891, 168 S.E. 468 (1933), the Supreme Court held that implicit promises of leniency made during an interrogation render the induced statement involuntary.

The testimony of the Commonwealth’s attorney shows that, though he may not have made any express promise of immunity, or light punishment to [the accused], he intentionally so conducted his conversations with his brother and with him, and so shaped his language, as to raise in the mind of [the accused] the hope and belief that, if he told what he knew about this crime and testified in behalf of the Commonwealth against the others ... he would not be prosecuted. A confession procured under such circumstances is not in law a voluntary confession, and is not admissible.

Id. at 905, 168 S.E. at 473.

Detective Urban exceeded the bounds of appropriate cajoling and created an expectation of leniency when, in response to Kauffmann’s inquiry whether the authorities would “come back and do something to him at a later date” if he talked, the detective reassured Kauffmann that due to his daughter’s suicide “there was enough grief and hardship sitting on [Kauffmann’s] shoulders right now.” The detective intentionally and explicitly used the tragic death of Kauffmann’s daughter as a ploy to suggest that no further punishment was in store because Kauffmann had been adequately punished. The detective’s reassurance was an inducement which impermissibly interfered with Kauffmann’s ability to make a knowing, voluntary statement. Kauffmann was led to believe that his statement would have had the effect of freeing him from prosecution. “[S]uch a powerful inducement [was] thus presented to his mind as to lead him to make [the statement] without regard to its truth or falsity, and hence it [was] involuntary.” Belcher v. Commonwealth, 160 Va. at 905-06, 168 S.E. at 473.

In Colorado v. Connelly, 479 U.S. 157 (1986), a suspect approached the police and confessed to a crime without any “indication whatsoever that [the suspect] was suffering from any kind of mental illness.” 479 U.S. at 160-61. The Supreme Court held that in the absence of coercive police conduct, a suspect’s mental condition alone cannot provide a basis for concluding that his statement was involuntary. Id. at 163-67. Unlike the accused in Connelly, Kauffmann did not instigate contact with the police but, rather, was approached by the police and interrogated on two occasions when it was apparent to the police that he was emotionally upset and disturbed. Moreover, the implicit promise of leniency that the detective made to Kauffmann as an inducement to stimulate his confession sufficiently distinguishes this case from Connelly.

Likewise, the fact and circumstances of the promise distinguish this case from Elstad. When Kauffmann went to the police station the second time, he and his wife had been told that the purpose of the visit was to meet with a mental health social worker. Consistent with the detective’s earlier promise not to inform Kauffmann’s wife of the earlier discussion, Kauffmann’s wife was taken to a separate room. Kauffmann was placed in a room with the mental health social worker and the detective, who earlier implicitly had assured him that the police “would not come back and do something to him at a later date.” Without revoking the earlier assurance, the detective gave Kauffmann Miranda warnings and proceeded to interview him concerning the same matters.

It cannot be said that the Commonwealth, on these facts, has established that Kauffmann’s statements were “free and voluntary.” Malloy v. Hogan, 378 U.S. 1, 7 (1964). These facts and circumstances reveal an official overreaching that negates the exercise of free and voluntary will. In addition to interrogating Kauffmann at times when he was unable to contain his emotions, the record clearly establishes an implicit promise by the detective not to prosecute Kauffmann for his admissions. “The Fourteenth Amendment secures against state invasion ... the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will. . . .” Id. at 8.

The majority reads Elstad too broadly. The Supreme Court in Elstad did not hold that admission of the initial unwarned statement, which was followed by a second statement obtained after a Miranda warning, was harmless error. In Elstad, the first unwarned statement was suppressed by the trial judge and was not admitted at trial. 470 U.S. at 302. The Supreme Court thus had no cause to consider whether “the admission of the first statement was harmless error” but, rather, held only “that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” 470 U.S. at 318 (emphasis added). In this case, the evidence of official overreaching and the lack of free will also compel a reversal of the order denying the motion to suppress Kauffmann’s statements to the police.

II

The record reflects that Kauffmann tendered Instruction B concerning contributing to the delinquency of a minor. The trial judge refused that instruction, saying that there was no evidence to support it because the evidence did not establish that the daughter consented to sexual conduct. Stating that it is possible for a person to commit aggravated sexual battery and not at the same time contribute to the delinquency of a child in violation of Code § 18.2-371, the majority relies upon a different theory to uphold the trial judge’s refusal. I disagree.

The majority holds that contributing to the delinquency of a child, as statutorily prohibited by Code § 18.2-371, is not a lesser included offense of aggravated sexual battery because a child charged with aggravated sexual battery could not be convicted under Code § 18.2-371. In my opinion that holding fails to recognize the statutory mesh between the juvenile law and the criminal law. The juvenile and domestic relations district court has exclusive original jurisdiction over all matters concerning children — persons less than eighteen years of age. Code §§ 16.1-228 and 16.1- 241. Accordingly, the jurisdiction of the circuit court in criminal proceedings extends only to persons eighteen years of age or older, except and unless there has been a transfer of the child to the circuit court pursuant to Code § 16.1-269. Obviously, a child could not be initially charged with a violation of Code § 18.2- 371 and transferred to the circuit court for trial as an adult on that charge. A child could be charged with aggravated sexual battery, however, and transferred to the circuit court for trial as an adult. When a child is tried for a felony in the circuit court, that court may render a verdict and impose sentence just as if the child were an adult. Code § 16.1-272. I do not read Code § 18.2-371 to exclude from its coverage a child who has been statutorily determined to be an adult for purposes of transfer to the circuit court for trial under a felony statute and for sentencing as a felon. Thus, where a child is charged with aggravated sexual battery and transferred to the circuit court of trial as an adult, that child may be acquitted of the felony and convicted, as any adult, of any applicable misdemeanor. Code § 16.1-272.

The refused instruction should have been given. Code § 18.2-371 broadly states that “[a]ny person eighteen years of age or older, including the parent of any child, who shall willfully contribute to, encourage, cause or tend to cause any act, omission, or condition which renders a child delinquent, in need of services, or abused or neglected as defined in § 16.1-228, shall be guilty of a Class 1 misdemeanor.” Equally broad is the statutory definition of “child in need of services.” That phrase is defined to mean:

[A] child whose behavior, conduct or condition presents or results in a serious threat to the well-being and physical safety of the child; however, no child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination shall for that reason alone be considered to be a child in need of services.

Code § 16.1-228(5). The evidence in this case would support a finding that Kauifmann’s daughter was in need of services, as that phrase is statutorily defined.

Under the indictment the Commonwealth was required to prove that the sexual abuse was against the will of the daughter. The evidence in this case as to that element was purely circumstantial. Regardless of whether the sexual conduct was against the daughter’s will, the evidence would have supported a finding that she was in need of services. Certainly the jury could have found that Kauffmann’s sexual conduct with his daughter resulted in a serious threat to her well being.

A jury, not the trial court, weighs the evidence and assesses the credibility of the witnesses. It is immaterial that the jury might have rejected the lesser-included offense; if there is evidence tending to support the lesser offense, a trial court errs in refusing an instruction thereon.

Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986) (citations omitted). In view of the circumstantial nature of the evidence, I would hold that the trial judge erred in failing to instruct the jury as to the lesser offense.

Ill

For the reasons stated I would reverse and remand for a new trial if the Commonwealth be so advised.