Law Enforcement Investigators Need To Carefully Review Tenth Circuit Ruling On Admissibility Of Confessions After Promising Defendant Immunity During Initial Investigations

250px-US-CourtOfAppeals-10thCircuit-SealBy Darren Smith, Weekend Contributor

In Sharp v. Roling, the United States Court of Appeals for the Tenth Circuit granted a habeas corpus petition by a Kansas woman convicted in state court of kidnapping and felony murder. The evidence in question was what the Court determined to be an involuntary confession elicited by detectives on the promise that the defendant would not be jailed in exchange for her statements.

The significance of this ruling should establish a new practice that any offer by law enforcement that can be considered an offer of immunity from prosecution, regardless of whether formal or informal, will generate a high probability of suppression of any confession by a potential defendant.

The facts in the case are stipulated as follows:

In 2006, Kimberly Sharp lived homeless in Kansas with her two children. One day while she was with three homeless men at a camp site, David Owen approached the group and harangued them for being homeless. An altercation ensued. Two of the homeless men dragged Mr. Owen into the woods and tied him to a tree, where he was later found dead.

While investigating the death, police interviewed Ms. Sharp. During the interview, she confessed to playing a role and accompanied officers to the camp site to re-enact the events. The police videotaped the interview and re-enactment. She was subsequently charged in state court with first-degree felony murder and kidnapping.

Ms. Sharp moved to suppress her confessional statements, arguing they were involuntary because the police promised leniency—no jail—and help finding shelter for her and her children to live. The court denied the motion, concluding her statements were voluntary based on its factual finding that Ms. Sharp was not operating under any promises.

A jury, having received evidence of Ms. Sharp’s statements, found her guilty on both counts. The court sentenced her to life in prison (with a chance of parole after 20 years) on the murder conviction and 61 months in prison on the kidnapping conviction, to run concurrently. She appealed the denial of her motion to suppress.

The Kansas Supreme Court affirmed, concluding the record supported the trial court’s finding that Ms. Sharp was not operating under any promises. She then filed a petition under 28 U.S.C. § 2254 seeking habeas relief in the United States District Court for the District of Kansas, arguing her confessions were not voluntary and were admitted in violation of the Fifth and Fourteenth Amendments. The court denied her petition and granted her a certificate of appealability (“COA”) under 28 U.S.C. § 2253(c).

On appeal Ms. Sharp challenges the state supreme court’s factual findings and seeks habeas relief. Thus reviewing this matter de novo, the Tenth Circuit determined Ms. Sharp’s confessional statements following a promise of no jail time were involuntary, the state trial court erred by admitting them at trial in violation of Ms. Sharp’s Fifth and Fourteenth Amendment rights, and the error was harmful. The Court reversed the district court and granted Ms. Sharp’s petition for a writ of habeas corpus as to her convictions, subject to the state’s right to retry Ms. Sharp within a reasonable time.

In addition the Kansas Supreme Court made these notations:

As an advocate for the homeless, David Owen used unconventional methods. These methods included offering the use of his phone cards and cell phones for them to call their loved ones. Owen also tried to force them to return to their families by destroying their camps and taking their equipment and supplies. He often photographed the destroyed camps and carried the pictures while visiting other camps.

Owen had been reported missing for several weeks when on July 2, 2006, a canine search team found his body in a heavily wooded area on the bank of the Kansas River in Topeka. No personal property, including identification, shoes, socks, or eyeglasses, was located on or around Owen’s body. The officers recovered an axe and some pieces of rope when they searched the surrounding area. The coroner opined that Owen had been dead for several weeks or months, and he listed the manner of death as homicide. Approximately 10 days after discovery of Owen’s body, defendant Kimberly Sharp and three other homeless people—her boyfriend Charles Hollingsworth, Carl Lee Baker, and John Cornell—were arrested and subsequently charged with kidnapping and felony murder.

Sharp and Hollingsworth were seated on a bench near the river when detectives first encountered them. Detective Bryan Wheeles noticed that Sharp was scared, so he walked her further down the street, away from Detective Mike Barron and Hollingsworth. Wheeles explained that they needed to talk to her about their investigation into Owen’s death. Wheeles and Barron then separately transported Sharp and Hollingsworth to the Topeka Police Department to be interviewed.

Wheeles was informed on the way to the station that there was an outstanding warrant for Sharp out of Emporia, Kansas. When they reached the station, Sharp was put in an interview room where Wheeles Mirandized her after telling her that she was under arrest. Wheeles did not tell her specifically why she had been placed under arrest.

Wheeles then conducted a fully recorded interview with Sharp. The interview contained three basic parts: (1) an initial interview lasting 20 or 30 minutes in which Sharp described most of the events surrounding Owen’s kidnapping; (2) a re-enactment of the crimes with Wheeles at the homeless camp; and (3) a final interview at the station.

During Sharp’s initial interview, she told Wheeles that on Thursday, June 15, 2006, she was sitting around a campfire with Hollingsworth, Baker, and Cornell. Around 7 p.m., Owen walked into the camp and told these homeless people that they should not camp and should call their families.

Everyone was upset by his remarks, especially when he said he would have burned their camp if they had not been there.

Sharp told Wheeles that Baker began arguing with Owen, who then said he was going to call the police. When Owen reached for his phone, Baker and Hollingsworth knocked him to the ground. Hollingsworth then struck Owen and dragged him into the woods.

According to Sharp, she also headed into the woods to see what was going on. There she saw Owen on his knees and Hollingsworth with “an axe that he was going to [use to] kill him like that.” Sharp told Hollingsworth, “[N]o, don’t do that, don’t do that. I can’t be an accessory to this shit, you know. I can’t do that. I got two kids . . . .” She said Cornell then brought Hollingsworth a rope which was used to tie up Owen. Baker stuffed a rag
in Owen’s mouth, and the two men continued to beat him. Sharp told Wheeles that Cornell then burned all of Owen’s possessions, including his pictures, notebooks, shoes, and socks. Hollingsworth and Baker then dragged Owen into the woods, and Sharp never saw Owen again.

After additional discussion during which Sharp continued to deny any participation, Wheeles specifically asked if she helped burn Owen’s possessions. She denied helping burn or having Owen’s phone or bag at any point. Sharp eventually admitted that she helped burn. When Sharp then asked if she was going to jail, Wheeles responded, “No, no, no, no, no, no, no, no, [no, no]. You are a witness to this thing as long as you do not
do something dumb and jam yourself.” He further explained that if she had been scared she should tell him and, “Just don’t tell me no if I ask you something.” Sharp then detailed her role in burning Owen’s phones and notebooks.

After Sharp informed Wheeles that her two kids were with Baker at another homeless camp, he left the interview. Upon his return he told her they were going to work together to get her kids “out of harm’s way.” He advised that Baker was a registered sex offender and had an outstanding arrest warrant for a parole violation. They then left together, retrieved the kids, and brought them back to the station within the hour to be with Sharp.

Approximately 1 hour later Wheeles escorted Sharp to the camp where she re-enacted the events surrounding Owen’s kidnapping and murder. During the re-enactment, Sharp told Wheeles that when Hollingsworth was standing over Owen with an axe, she had said to him, “No, don’t kill him.” Wheeles requested clarification, “Did you say ‘No, don’t kill him,’ or did you say, ‘No, don’t kill him here?’” Sharp responded, “Don’t kill him here.” (Emphasis added.) Sharp also admitted that Hollingsworth had then asked her to bring him some rope, and she told Cornell to go get it. She further admitted that it was her idea to burn Owen’s things so there would not be any evidence to tie her to the events. “I said we have to burn it ‘cause I don’t need the evidence. I don’t want to be tied to this.”

Following the re-enactment, Wheeles brought Sharp back to the station. He asked her a few more questions and then left her alone in the interview room with her children. Approximately 1 hour after returning to the station, Wheeles was notified that the district attorney’s office had decided to charge Sharp. When Wheeles told her that she was going to be placed under arrest, she became angry and upset. Sharp accused Wheeles of lying to her and said that he had tricked her, telling him: “This is bullshit.”

The Tenth Circuit Court emphasized that Detective Wheeles at the beginning of the interview stated “As long as you are straight with me, we’re not going to have any problems…I’m not going to lie to you in this investigation at all.” In addition, after retrieving her children from the homeless camp, he brought the children to the interview room and had Sharp complete a written statement describing in detail the attack on Mr. Owen.

At a subsequent suppression hearing, Detective Wheels testified that he told Ms. Sharp that the district attorney would ultimately decide whether charges would be forthcoming and that he did not make any promisers to Ms. Sharp, instead suggested she be truthful and assured her that her children would be retrieved from the homeless camp. Her council argued that the statements were not voluntary and were elicited on a promise of leniency and that he would find a safe place for her and her children to stay. The trial court denied the suppression, holding that confessions were made freely, voluntarily and intelligently.

Resulting from the confession, a trial resulted in Ms. Sharp being sentenced to life imprisonment for the first degree felony murder plus a concurrent sentence of sixty one months—parole eligibility would follow after twenty years.

The Court established federal jurisdiction to review Ms. Sharp’s habeas petition, the scope of which will not be discussed here.

The essence of the Courts finding to promises made to Ms. Sharp hinged on several facts, citing the Kansas Supreme Court erred in not suppressing the confessions. The court noted that that Detective Wheeles made statements alluding to the subterfuge that proffered her status was that of a witness and not a suspect. He further solidified this position by assuring her that he was not concerned of a previous lie that Ms. Sharp made by claiming that he was not interested in her destruction of evidence in the crime. Furthermore, he offered her the opportunity to return to the crime scene and provide a narrative of events conditional on the promise of leniency that by providing what was later held to be incriminating statements he would provide for her children’s safety. The court also held that the Ms. Sharp was in a vulnerable position given the totality of the circumstances and that relief from this condition would be guaranteed by Detective Wheeles by promises of “no jail time” and other assurances as she was a witness to the crime.

The court held that Ms. Sharps reaction of anger and surprise at her arrest further evidenced that she was under the belief that no charges would be filed against her.

During her subsequent trial court hearings the court made a harmful error in not suppressing the confession that was gathered unconstitutionally.

By Darren Smith

Source: Sharp v. Rohling

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

12 thoughts on “Law Enforcement Investigators Need To Carefully Review Tenth Circuit Ruling On Admissibility Of Confessions After Promising Defendant Immunity During Initial Investigations”

  1. On cross examination of the cop you ask some pertinent questions. Such as: “So, officer, when you told her that the children would be returned to her was that the truth?” “Were they?” Answer: “Yes.” “You mean to say that they went to jail with her?” “Oh.”, he says. “So, after digging through your statements you did not always tell her the truth?” “No.” “You lied?” “No.” “Or, sort of, but it was for justice. And so you are lying here today!”

    “Thats all I have.” Look at the jurors and scowal as you walk back to counsel table and shake your head. Then say to the judge that: “I move to strike all the testimony of this witness.” Say it out loud in front of the jury and the audience, not at sidebar. The judge: “Over ruled!” Scowl again, roll your eyes and shake your head. Have your guy in the audience say out loud: “Cops a liar!”

    On closing argument begin with: “Officer Krumpke lied to her, lied in his reports and he lied to each one of you. He lied to you under oath. After swearing on the the Holy Bible.” (Hold up the Holy Bible).

  2. When this old left wing militant was a certified/commissioned law enforcement officer in New Mexico I attended a 40 hr. fbi course on “Interviews and Interrogations”. Basically a good course. One of the things that was highlighted over and over again was the ‘suspect’ can’t lie to the officer, especially the fbi, but we could lie out our asses to the suspect.

  3. in that position to me it wouldn’t be ‘involunatary’ via lienency….but duress. They told her a sex pervert had her kids. Under that duress she talked….not for lienency but to save her kids. But ivoluntary bc via duress nonetheless. Was it really a pervert to save her kid’s from or were they lying? Cuz scotus said they can lie. That’s why few talk to pigs even when they should.

  4. Sandi Hemming,

    If I didn’t believe the builders should be the voters (ex-affirmative action) in the restricted-vote republic…”if you can keep it…,” I’d say you should be given a vote. To be sure, America has been built, time and again, by fire.

    The Ninth Circuit should receive the same fate as the very guilty Alger Hiss. As of two weeks ago, the SCOTUS is in the same category suffering a “cognition malfunction” and modifying, not reading, the English language.

    To wit,

    Article II, Section 4

    “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

    It is well past time for the Congress to put teeth in impeachment. Congress must roll out the metaphorical “guillotines” of the French Revolution and put them to good and constant use. Any Congressman who refused to vote for impeachment of the Ninth and the SCOTUS should be the first to experience the bite of those teeth forthwith, post haste.

    What good are “checks and balances” if no officials are ever checked or balanced.

    All America has obtained so far are the “ends” that “justify the means.”

  5. BarkingDog at least you aren’t under the Ninth Circuit. They pay no attention to the Constitution. Twice they have overturned winning ballot propositions, maybe more. The two most significant were marijuana and same sex marriage. Those were both very high percentages of the votes, but the Ninth reversed them. In the sane part of the state we didn’t protest, loot, riot, set cars on fire. We were probably in bed by the time it was announced for sure.

    I hope there are no ballot propositions. A fortune is used by both sides, and the commercials are tiresome. The only thing you can vote for is Governor, Senate, House, a gazillion judges, school boards. Think of the money that could have been put to better use. They won gay marriage anyway. I’m sorry it was the Court ruling. Something as big as same sex marriage should have been by representatives in Congress according to the vote of their constituents.

    The Congress can spend more time with their families, have great vacations, catch up on reading, and bone up on the Constitution, there will be a test the first day back. Roberts and Co.can do your work while you are gone. I hope Mr, Kennedy and Mr. Roberts read everything written by the Founders and question these two worst for the United States. Same sex marriage was OK with me, but I think in time it would have been accepted. Where do we go about Obamacare? Yes, there are things on the table, but since Roberts has voted twice for this behemoth. Maybe he should spend his vacation reading it.and the many problems it has caused. I think “W” and some staff are just blown away by Roberts. Everybody was sure he was a solid conservative.

    I saw an interview with Ruth. She said she wasn’t leaving, there were too many things women have to convince the men about and she was going to stick around. I’d call that an agenda. Aren’t judges supposed to have an open mind with knowledge of the law before the call to order. Ruth comes with an additional goal. She says she won’t leave before Obama is gone and she knows the next candidate.

    If the Court had sent the whole thing back to Congress insisting all fees be changed to taxes, I used to ask myself why? I’ve moved to his most recent vote. He probably has a close relative or friend who is gay, maybe thought it would be accepted. There are already a plethora of suits or whatever that are there due to gay marriage. The trial lawyers are in ecstacy. Hillary is in ecstacy. I love Fox, but if a Democrat gets elected, even if we keep both houses of Congress, I am not watching my country slide into whatever name you want, it is communism and you better get your money out of the banks, and bury where they can’t find it. Tell them you lost every penny gambling to keep afloat. Are they kidding about 90% tax rate? Maybe not that bad, but bad. They already want to change the pictures on our Money. Put Roberts on the Dollar Bill, so no one forgets who did us in.

    If you have read this to the end, I thank you. And would be pleased to send you a Dollar Bill before the man who killed so many people to get this country going is removed. How long before the Monument will be closed and eventually collapse and sell the stones for great amounts of money?

  6. What she eventually reenacted was being there and not stopping the murder. The prosecutor over charged her as well as the cops coerced her statements under false pretenses. I wonder what would have happened if the two guys were charged with the murder and she for not calling the police or some lesser offense. There seems to be enough stupidity to go around.

  7. It is fascinating what people will tell you. I’ve been interviewing people for going on 40 years now and I never cease to be amazed. I have taken countless statements from people that were directly against their interest. People just love to talk about themselves. And, I love to listen. Good interviewers are often introverts, they understand people, know what buttons to push, and then just sit back and listen. You don’t need to lie to people to get them to talk. That’s lazy and stupid.

  8. The dead guy probably deserved to die. That said, the statements from her were coerced and manipulated before the recording started. The cop should do the time for the killing of dead guy and day per day for any time spent by this women in jail or prison.

  9. Plus, suspects watch TV and every cop show out there has the cops offering deals for testimony. How can you blame people for believing that they can.

    OTOH, every cop show also shows cops lying like dogs and cheating the perps, so maybe it all works out.

    Never mind.

    Squeeky Fromm
    Girl Reporter

  10. I think that cops are so used to being able to lie to suspects and get away with it, they think it is going to work all the time. This time they got caught with their hand in the cookie jar.

  11. All the more important as the 10th seldom finds anything exonerating. Shows the value of mandated statement recording, as there is no chance the promise would have come to light if there were not.

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