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No. 101,347

IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. ROBERT D. CLUCK, Appellant.

SYLLABUS BY THE COURT 1. The belief of a questioning officer that the person being questioned is the perpetrator of a crime does not automatically make an interrogation without Miranda warnings unlawful.

2. The question of whether an interrogation is custodial must be determined based on an objective standard of how a reasonable person in the suspect's situation would perceive his or her circumstances.

3. A person who voluntarily goes to a police station to be questioned, is questioned, and then leaves without restraints being placed on his or her movements is not in police custody.

4. A trial court is not required to give reasons for not granting downward or disposition departures from a presumptive sentence.

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5. The legislature has provided specific penalties for crimes. The courts must follow these penalties and may not add additional ones.

Appeal from Doniphan District Court; JOHN L. WEINGART, judge. Opinion filed April 8, 2010. Affirmed in part and vacated in part.

Ryan Eddinger, of Kansas Appellate Defender Office, for the appellant.

Charles D. Baskins, county attorney, and Steve Six, attorney general, for the appellee.

Before STANDRIDGE, P.J., PIERRON, J., and BUKATY, S.J.

PIERRON, J.: Robert D. Cluck appeals his convictions by a jury of three counts of involuntary manslaughter while under the influence of alcohol and one count of improper passing. Cluck also argues the district court imposed an illegal sentence by ordering him to post photos of the victims in his jail cell, erred in denying his motion to suppress his confession, and failed to exercise discretion in denying his motions for departure.

Cluck does not challenge the sufficiency of the evidence of his convictions and only raises legal questions on appeal. The necessary facts are as follows.

On August 5, 2007, around 9 p.m., a two-vehicle accident occurred west of Wathena, Kansas. Robert Young was driving a F-350 truck and had three passengers. Young testified that a Corvette attempted to pass him but then struck the side of the truck, causing the truck to "fishtail." The truck left the road, struck a culvert, and came to rest upside down in the ditch. All three passengers were killed, but Young survived.

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Cluck is the owner of the Corvette. He denied having had any alcohol throughout the day but stated he had met his friend Charles Harrelson for drinks at the VFW in Wathena early in the evening. Cluck testified he had three drinks at the VFW and then asked Harrelson if he would drive the Corvette home because Cluck had been traveling all day and did not want to drive after three drinks. Cluck testified he remembered leaving the VFW, but he was in the passenger side of the Corvette. The next thing Cluck claims he remembers was waking up still in the passenger seat with Harrelson standing outside the car talking to him. Cluck testified that Harrelson told him they had been in a wreck and there were three casualties.

Harrelson testified that he and Cluck left the VFW together, but they did so in different vehicles. He testified he was going to follow Cluck home in his F-350 but got a phone call just as he was leaving, which delayed him for a few minutes. Harrelson came upon the accident and found Cluck sitting in the passenger seat of the Corvette. Harrelson testified he and Cluck began to look for the victims but Cluck said that they should get out of there. Harrelson said, "We can't leave." However, shortly thereafter, Harrelson left the scene before the authorities arrived. He testified he drove home in his F-350--the same truck he had driven to the scene. Harrelson testified he did not drive the Corvette the night of the crash.

Nicolas Bauman was behind the Corvette and the truck when the accident occurred. Bauman testified he immediately pulled his car over to render assistance. He testified that he first went to the Corvette and Cluck looked like he had been thrown out of the driver's seat towards the passenger seat but his legs and bottom section were still in the driver's side of the car. Apparently, no one else was in the Corvette. After determining that Cluck was not seriously injured, Bauman then tried to assist the victims in the truck.

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Cluck was treated at the hospital for a laceration on the back of his head. Cluck gave a blood sample. His blood-alcohol concentration was .22 approximately 1 hour after the accident. The day after the accident, Cluck voluntarily went to the police station to give a statement. Harrelson drove him to the station, where they both gave voluntary statements. Trooper Jerry Clary testified that Cluck admitted to driving the Corvette during the accident and that he lost control of his vehicle as he tried to pass.

The State charged Cluck with three counts of involuntary manslaughter while driving under the influence of alcohol, DUI, aggravated battery, and improper passing. A jury convicted Cluck on all charges except the charge of aggravated battery. Upon a motion for directed verdict, the court found that Cluck's conviction for DUI was multiplicitous with the manslaughter convictions and set aside the DUI conviction. The trial court sentenced Cluck to a controlling term of 155 months' incarceration and ordered the Department of Corrections to post photographs of the victims in Cluck's cell for the duration of his prison term.

Cluck argues the trial court erred by denying his motion to suppress his confession. Cluck contends he was in custody when he made the statement and officers had failed to give him Miranda warnings prior to his interrogation. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1996).

When a pretrial motion to suppress has been denied, the moving party must still object to introduction of the evidence at trial in order to preserve the issue for appeal. State v. Jones, 267 Kan. 627, 637, 984 P.2d 132 (1999). The latter requirement is commonly known as the contemporaneous-objection rule and is codified in K.S.A. 60404. See State v. King, 288 Kan. 333, 341-42, 204 P.3d 585 (2009). Specifically, K.S.A. 60-404 requires an on-the-record "objection to the evidence timely interposed and so stated as to make clear the specific ground of objection." Among other advantages, this
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requirement allows a court to rule on the evidence before trial, but after hearing how the evidence unfolds during trial, it allows the court to be prepared--after timely trial objection--to reconsider its original ruling. Cf. Luce v. United States, 469 U.S. 38, 41-42, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984) (in limine ruling "is subject to change when the case unfolds").

In Jones, the defendant argued that his counsel's action at the beginning of trial to renew his previous motions to suppress was the equivalent of a timely interposed objection to evidence when it was offered later during trial. The court rejected this argument, citing State v. Nunn, 244 Kan. 207, 213, 768 P.2d 268 (1989), for "why nothing short of an objection at the time evidence is offered satisfied the requirement" of a contemporaneous objection. Jones, 267 Kan. at 637. The Court of Appeals has rejected a similar defense argument after denial of a pretrial motion to suppress, i.e., that an objection at the close of the State's evidence is contemporaneous. See State v. Daniels, 28 Kan. App. 2d 364, 365, 17 P.3d 373 (2000), rev. denied 272 Kan. 1420 (2001). Because the objections were not contemporaneous, both the Jones and Daniels courts concluded that the evidentiary issue was not preserved for appeal.

Although his pretrial motion to suppress his confession was denied, Cluck made no contemporaneous objection to the use of his confession at trial. Consequently, he has failed to preserve the issue for appeal.

Nevertheless, we will perhaps save judicial time and effort by noting that we find Cluck's underlying argument lacks merit. Cluck claims he was subjected to a custodial interrogation for two reasons: (1) Trooper Clary testified that he believed Cluck was the only suspect responsible for the accident; and (2) the interrogation occurred in the interview room at the county jail.

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Cluck attempts to shift the focus onto Trooper Clary because Clary believed that Cluck was the only person responsible for the accident. While probably true, this fact is not controlling. "The question of whether an interrogation is custodial must be determined based on an objective standard of how a reasonable person in the suspect's situation would perceive his or her circumstances." State v. Jones, 283 Kan. 186, Syl.

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