Harwick, Kan. Likewise, the officers' statements that Walker could help himself are similar to statements upheld in State v. Ninci, Kan. Therefore, we conclude that the officers' conduct was not of a nature to overcome Walker's free will and render the statements involuntary.
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The trial court found that law enforcement was fair with Walker and that his statements were the product of Walker's free will. Substantial competent evidence supports the trial court's finding. Walker was comfortable with Sergeant Robinson, evidenced by the fact that he asked to talk to Robinson. Walker was experienced in dealing with law enforcement, as evidenced by some of his conversations with the officers in the interview room.
Further, as Detective Mumma testified, Walker had been questioned on previous occasions. As we have discussed, no individual factor, standing alone, suggests that Walker's free will was overcome. When we examine the totality of the factors and the circumstances of the interrogation as part of our de novo review, we conclude the statement was the product of Walker's free and independent will. Walker further contends that the trial court erred in denying his motion to suppress physical evidence discovered as the fruit of a Miranda violation. Walker specifically argues that evidence pertaining to the vehicle should have been suppressed because statements given by Walker in violation of his right to counsel led law enforcement officers to locate the evidence.
The exclusionary rule that prohibits the use of wrongfully obtained confessions also prohibits the use of any evidence obtained as a result of the wrongfully obtained statements under the fruit of the poisonous tree doctrine. Silverthorne Lumber Co. United States, U. The evidence may be used, however, if police can trace the evidence to an independent and lawful source.
Wong Sun v. As explained in State v.
Kansas Execution Totals Since 1976
Waddell, 14 Kan. In this case, at the suppression hearing, the prosecutor acknowledged that after Walker requested counsel, he described the car that was used in the crime and started telling officers about how he obtained the vehicle. But, officers' testimony revealed that Walker gave the wrong make of the car and the wrong location. The trial court ultimately found that the police used some information from the admissible portion of the interrogation, in conjunction with independent police investigation, to determine who owned the car, where it was located, and how Walker got the car on the night of the drive-by shooting.
Substantial competent evidence supports the trial court's conclusion that the prosecution established, by a preponderance of the evidence, that the unlawfully obtained evidence would have ultimately or inevitably been discovered by lawful means. Walker also mentioned that he and Thomas were in a car together on the night of the incident. Later, officers talked to Thomas who described the car as maroon in color. Officers' testimony also revealed that Walker mentioned the names of Shaun Bell and Reginald Hunt during the admissible portion of the interview.
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Reynolds testified that, based on an address for a crack house provided by Walker during the inadmissible portion of the interview, the police went to Hunt's residence and talked to Hunt who admitted knowing Walker. It was a narcotics search warrant executed at Hunt's residence that led police to Scott Shaffer and his vehicle-the one that was used in the drive-by shooting.
Walker mentioned he had been at Hunt's house before he requested counsel. The record shows that, while officers used evidence from both the admissible and inadmissible portions of Walker's interrogation to investigate further into the details of the case, none of the statements made by Walker in the inadmissible portion of the interrogation led officers directly to the car used in the incident. The car was located only after law enforcement followed other leads, conducted interviews of other witnesses, and assimilated independent information.
Judge David W. Kennedy presided over Walker's first trial, and Walker wanted a different judge to preside over his second trial. He argues, therefore, that he was denied a fair trial when his motion to change judge was denied.
Walker's contentions are not persuasive. The standard of review for a claim of error relating to a motion for change of judge is set forth in State v. Alderson, Kan. First, the party files a motion without stating the grounds for the party's belief that the judge to whom the case is assigned cannot afford that party a fair trial. A Supp. The second step depends upon whether the judge disqualified himself or herself. If disqualified, the chief judge of the district assigns the action to another judge. The affidavit must be filed immediately and may allege any of the grounds specified in K.
If the affidavit is found to be legally sufficient, the case is assigned to another judge. Woleslagel, Kan. Where the allegations in the affidavit are speculations only, they do not reach the threshold necessary to sustain the motion. Goss, Kan.
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Walker filed a motion pursuant to K. Judge Kennedy denied the motion. Walker proceeded to the next step of the procedure and filed an affidavit in support of his motion for change of judge. In his affidavit in support of his motion for change of judge, Walker pointed out that, in the first trial, Judge Kennedy had denied his motion for acquittal at the close of the State's evidence and had also denied his motion for acquittal notwithstanding the verdict at the conclusion of the trial.
Ballinger-examined Walker's affidavit and held an informal hearing on the matter. At the hearing, the ineffective assistance of counsel issue was discussed. It was revealed that when defense counsel House had requested a trial continuance, he told Judge Kennedy that he would be ineffective if he did not receive a continuance.
Judge Kennedy was not inclined to give a continuance and, thus, removed House from the case. Judge Kennedy then issued an order reappointing House as defense counsel and setting July 12 as the date for the jury trial. At the informal hearing on the motion for change of judge, the State argued that the situation was not one where the trial court believed defense counsel could not handle the case.
Instead, defense counsel expressed that he could not be ready for trial on the date imposed by the court. The State pointed out that the trial date was ultimately continued. As for Walker's allegation that Judge Kennedy implicated defense counsel as a liar in the presence of the jury, this issue was not discussed at the hearing. However, Walker attached to his affidavit the portion of the transcript in which defense counsel House told Judge Kennedy he had not received copies of certain cell phone billing records.
But that doesn't make any difference. On appeal, Walker contends this ruling was erroneous because he created reasonable doubt regarding the impartiality of Judge Kennedy. Logan, Kan. Regardless, even if this court were to assume that Walker established the first part of the test, in order to establish a due process violation Walker must demonstrate actual bias or prejudice by the judge. Reed, Kan. Foy, Kan. Printup, Kan. Walker fails to point to anything in the record demonstrating that Judge Kennedy actually exhibited bias or prejudice at either of his trials.
Therefore, we conclude the ruling on the motion to change judge did not create reversible error. Walker next raises the issue of whether the trial court improperly sentenced him for both felony murder and discharge of a firearm at an occupied dwelling. He contends that his sentence violates his right against double jeopardy.
This contention lacks merit. The issue of whether Walker's convictions violate double jeopardy is a question of law subject to unlimited review. Schoonover, Kan.
State Fetal Homicide Laws
Walker did not raise the double jeopardy issue below, but Kansas appellate courts may consider an issue for the first time on appeal to serve the ends of justice or prevent denial of fundamental rights. Dubish, Kan. Walker notes that the State's theory of felony murder arose from the death of month-old Lexus Mathis as a result of shots fired at the Mathis' house.
He further notes that the charge of criminal discharge of a weapon at an occupied dwelling arose from the act of firing shots at the same house. Walker argues that only one wrongful act, the discharge of the weapon toward the house, involved a single act of violence.
Thus, Walker contends that a single act of violence could not be used to support both crimes. In making this single-act-of-violence argument, Walker relies on State v. Groves, Kan. However, in State v. In Schoonover, this court recognized that the Double Jeopardy Clauses of the United States and Kansas Constitutions guarantee only the right not to be twice put in jeopardy for the same offense.
The provisions permit a prosecution based upon the same acts but for different crimes if the legislature authorized the cumulative punishment. The Schoonover court explained that when a double jeopardy claim arises from cumulative punishments imposed in one case,. The court listed four nonexclusive factors to consider in determining whether convictions arise out of the same conduct:. If the convictions are based on discrete conduct, i. If the conduct is unitary, that is it arises from the same conduct, the court must consider whether by statutory definition there are two offenses or only one.
In the case at hand, the first-degree felony murder conviction and conviction of discharge of a firearm at an occupied dwelling arose out of the same conduct of firing shots at the Mathis' home. The offenses were committed at the same time and at the same location. Moreover, there was no evidence of intervening events or a fresh criminal impulse motivating the conduct.
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Therefore, this constituted one transaction.