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Original File Date: 08/06/2010 Last Revision: 09/28/2010

No. 101,880 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. DONALD MICHAEL GAMBLE, Appellant.

SYLLABUS BY THE COURT 1. In reviewing a trial court's decision regarding the suppression of a confession, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard.

2. The right to counsel under the Sixth Amendment to the United States Constitution attaches on the filing of formal charges, indictment, or information; on arraignment; or on arrest on warrant and arraignment thereon.

3. The right to counsel under the Sixth Amendment to the United States Constitution is offense specific, cannot be invoked once for all future prosecutions, and does not attach to offenses that have not been charged.

4. Under the facts of this case, where the defendant was in custody for a different offense and no adversarial proceedings had been initiated against him in the present case, 1

there was no violation of the defendant's right to counsel under the Sixth Amendment to the United States Constitution.

5. In contrast to the Sixth Amendment right to counsel, the Fifth Amendment right to counsel, which is protected by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), is not offense specific.

6. Once a suspect invokes his or her right to counsel under the Fifth Amendment to the United States Constitution, interrogation must cease. Nevertheless, questioning of the suspect can be resumed if a lawyer has been made available or the suspect reinitiates conversation.

7. Under the facts of this case, where the defendant initiated contact with law enforcement to give his confession for the offenses that are the subject of the present case and voluntarily waived his Miranda rights before giving his confession, there was no violation of the defendant's right to counsel under the Fifth Amendment to the United States Constitution.

8. The trial court's refusal to grant a continuance so that a preliminary hearing can be held, after a defendant has voluntarily waived his right to a preliminary hearing, is reviewed for an abuse of discretion.

9. An appellate court reviews the trial court's denial of a defendant's request for a bill of particulars for an abuse of discretion. 2

10. Under the facts of this case, where the defendant voluntarily waived his right to a preliminary hearing on the record but then moved for a preliminary hearing 2 days before trial, there was no abuse of discretion in the trial court's refusal to hold a preliminary hearing.

11. Under the facts of this case, there was no abuse of discretion in the trial court's decision to deny the defendant's motion for a bill of particulars 2 days before trial.

Appeal from Anderson District Court; ERIC W. GODDERZ, judge. Opinion filed August 6, 2010. Affirmed.

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

Kristafer A. Ailslieger, assistant solicitor general, and Kendra M. Oakes, legal intern, for appellee.

Before STANDRIDGE, P.J., GREEN and CAPLINGER, JJ.

GREEN, J.: Donald Gamble appeals from his jury trial convictions of five counts of rape in violation of K.S.A. 21-3502(a)(2) and five counts of aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(1). First, Gamble argues that the trial court erred in admitting his videotaped confession because his statements were obtained in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution. Nevertheless, because Gamble was in custody for a different offense and because no adversarial proceedings had been initiated against Gamble with regard to the offenses that are the subject of this case, the admission of Gamble's videotaped confession did not violate his Sixth Amendment right to counsel. Moreover, where the appellate record in this case establishes that Gamble initiated the contact with law enforcement in order to give his confession to the offenses under investigation and that 3

Gamble voluntarily waived his Miranda rights before giving his confession, there was no violation of Gamble's Fifth Amendment right to counsel.

Finally, Gamble argues that the trial court erred in not granting his request for a preliminary hearing or a bill of particulars. We disagree. In light of the fact that Gamble had voluntarily waived his right to a preliminary hearing on the record 5 months before trial and that his retained counsel chose not to examine the prosecutor's file concerning the allegations against Gamble, we find no abuse of discretion in the trial court's decision to deny Gamble's request for a preliminary hearing or a bill of particulars, filed 2 days before the scheduled trial. Accordingly, we affirm.

In September 2007, A.F. (date of birth 01/07/1991) reported to the Anderson County Sheriff's Office that Gamble had repeatedly sexually assaulted her. A.F., who had been a friend of Gamble's daughter for many years, testified that the sexual assault began in 2001 when she was 10 years old and occurred approximately every 2 weeks until she and Gamble's daughter had an argument and no longer played together.

According to A.F., she and Gamble's daughter mended their relationship in 2003 and, by December 2003, Gamble had convinced her "to go back to the old ways." A.F. testified that around December 19 or 20, 2003, Gamble performed oral sex on her and penetrated her vagina with his fingers and his penis. A.F. further testified that Gamble sexually assaulted her again between January 4 and 7, 2004. According to A.F., Gamble continued to assault her every week or every other week when she stayed at his house.

When A.F. reported the sexual assaults to the Anderson County Sheriff's Office in September 2007, she told the interviewing officer that she and Gamble had smoked marijuana together and marijuana had been used in Gamble's house in the last few days. Based on this information, Detective Vern Valentine applied for and obtained a search

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warrant for Gamble's house. Officers found marijuana in Gamble's house and car and also recovered evidence relating to the sex crimes in Gamble's bedroom.

Gamble was arrested on a drug charge by Undersheriff Max Skelton and taken to jail on September 11, 2007. The Miranda form filled out by Skelton stated that Gamble requested to have a lawyer. Valentine testified, however, that after Gamble was arrested on the drug charge, Gamble told Skelton that he was unsure whether he needed an attorney, so Skelton wrote that Gamble had invoked his right to an attorney.

That same day, after Gamble had told Skelton that he was unsure whether he needed an attorney, Valentine went to talk with Gamble about A.F.'s sexual assault allegations. Valentine testified that he talked with Gamble for less than 10 minutes and did not want to talk about the drug charge. During their conversation, Gamble asked whether he needed an attorney. Valentine testified that he told Gamble, "If I [were] you, I'd probably have one." According to Valentine, Gamble stated that he did not know if he wanted an attorney. Valentine then told Gamble that Gamble should consider whether he wanted an attorney and that Valentine could get back with him when he had his first appearance for his drug charge in the next couple of days.

Valentine testified that on September 13, 2007, the day of Gamble's first appearance on the drug charge, he received a phone call at home that Gamble had stated that he wanted to talk with Valentine. When he testified in this case, Valentine could not remember who called him, but he believed it was one of the jailers or a secretary. Valentine went to the courthouse to talk with Gamble. Valentine testified that he told Gamble that he was going to be appointed an attorney in the next few minutes but that Gamble stated, "[T]hat's all right. I still want to talk to you whether I have an attorney or not. I need to get this taken care of."

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According to Valentine, he then went back to his office and set up recording equipment while Gamble had his first appearance on the drug case. At the hearing, Gamble was appointed an attorney to represent him on the drug case.

After Gamble's first appearance on the drug case, the jailer brought Gamble to Valentine's office. Valentine went over Gamble's Miranda rights, and Gamble waived those rights. During the videotaped interview, Gamble confessed to repeatedly sexually assaulting A.F.

On September 25, 2007, the State charged Gamble with 128 separate counts of rape and aggravated criminal sodomy. In January 2008, Gamble's appointed attorney requested a determination of Gamble's competency under K.S.A. 22-3202. The trial court ordered Gamble to submit to an examination and evaluation to determine his competency to stand trial. The conclusion from the psychological evaluation was that Gamble was competent to stand trial in that he appeared to comprehend the charges against him and had the ability to aid his attorney in his own defense.

Gamble later moved to suppress his statements during the September 11, 2007, interview with Valentine. Gamble argued that the interview was in violation of his rights because he had previously requested counsel after attempted interviews by law enforcement and an attorney had been appointed to represent him. Gamble further argued that he has a low I.Q. and did not understand the Miranda warnings or the impact of his statements. After holding an evidentiary hearing, the trial court denied Gamble's motion to suppress.

The trial in this case was held over 3 days in September 2008. On the second day of trial, the State filed an amended complaint, which listed five counts of rape and five counts of aggravated criminal sodomy. The dates when the crimes allegedly occurred

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were amended to coincide with A.F.'s testimony. The remainder of the charges against Gamble were dismissed.

The jury found Gamble guilty of five counts of rape and five counts of aggravated criminal sodomy. The trial court sentenced Gamble to 778 months in prison.

Motion to Suppress

First, Gamble contends that the trial court erred in admitting his videotaped interview with a police detective because the statements were obtained in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution.

Normally, in reviewing a trial court's decision regarding the suppression of a confession, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard. State v. Cofield, 288 Kan. 367, 369, 203 P.3d 1261 (2009).

Sixth Amendment Right to Counsel

The Sixth Amendment under the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence." The Sixth Amendment right to counsel attaches on the filing of formal charges, indictment, or information; on arraignment; or on arrest on warrant and arraignment thereon. State v. Appleby, 289 Kan. 1017, 1044, 221 P.3d 525 (2009) (citing Brewer v. Williams, 430 U.S. 387, 398, 51 L. Ed. 2d 424, 97 S. Ct. 1232, reh. denied 431 U.S. 925 (1977).

The Sixth Amendment right to counsel is offense specific, cannot be invoked once for all future prosecutions, and does not attach to offenses that have not been charged. 7

Appleby, 289 Kan. at 1044; State v. Pennington, 276 Kan. 841, 845, 80 P.3d 44 (2003). Therefore, "'"[i]ncriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached are, of course, admissible at the trial of those offenses." [Citation omitted.]'" Appleby, 289 Kan. at 1044 (citing McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158, 111 S. Ct. 2204 [1991]).

The United States Supreme Court in Texas v. Cobb, 532 U.S. 162, 168-69, 149 L. Ed. 2d 321, 121 S. Ct. 1335 (2001), has recognized that when the Sixth Amendment right to counsel attaches, it "encompass[es] offenses that, even if not formally charged, would be considered the same offense under the Blockberger [v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932)] test." The Blockberger test requires a court to evaluate whether each offense requires proof of a fact that the other does not. Previously charged offenses do not encompass new or different offenses that are factually related to the previously charged offenses unless the newly charged offenses pass the Blockberger test. Pennington, 276 Kan. at 845-46.

Here, Gamble's Sixth Amendment right to counsel had not attached as to the sexual offenses when he was interviewed by Valentine and gave his videotaped confession. Gamble had been charged only with the drug offense and not with the sexual offenses when he was interviewed by Valentine. No adversarial judicial proceedings had been initiated against Gamble with regard to the sex offenses. Further, the drug offense and the sexual offenses cannot be considered the same offense under the Blockberger test because they require proof of different facts. As a result, the admission of Gamble's videotaped confession did not violate his Sixth Amendment right to counsel.

Fifth Amendment Right to Counsel

"The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial 8

interrogation and the right to remain silent. [Citation omitted.]" State v. Walker, 276 Kan. 939, 944, 80 P.3d 1132 (2003). In contrast to the Sixth Amendment right to counsel, the Fifth Amendment right to counsel, which is protected by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), is not offense specific. Appleby, 289 Kan. at 1044. "Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. [Citation omitted.]" (Emphasis added.) McNeil, 501 U.S. at 177.

Quoting from the United States Supreme Court's decision in McNeil, our Supreme Court in Appleby explained that a second layer of prophylaxis had been added for the Fifth Amendment right to counsel as follows:

"Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880, reh. denied 452 U.S. 973 [1981], "'established a second layer of prophylaxis for the Miranda right to counsel: Once a suspect asserts the right, not only must the current interrogation cease, but he may not be approached for further interrogation "until counsel has been made available to him," [Edwards,] 451 U.S. at 484-485--which means, we have most recently held, that counsel must be present, [citation omitted]. If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights," [citation omitted].' McNeil, 501 U.S. at 176-77." Appleby, 289 Kan. at 1044-45.

The McNeil Court explained that an accused's assertion of the Sixth Amendment right to counsel does not invoke the Fifth Amendment right to counsel as a matter of fact. 501 U.S. at 178. "'One might be quite willing to speak to the police without counsel present concerning many matters, but not the matter under prosecution.'" Appleby, 289 9

Kan. at 1046 (quoting McNeil, 501 U.S. at 178); see also Rhode Island v. Innis, 446 U.S. 291, 300, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980) (Miranda's safeguards and procedural protection of Fifth Amendment rights "are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.").

The Fifth Amendment right to counsel applies only when the accused has expressed his or her wish for the particular sort of attorney assistance that is the subject of Miranda. Appleby, 289 Kan. at 1046. "'It requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.'" 289 Kan. at 1046 (quoting McNeil, 501 U.S. at 178).

When a defendant argues that he or she asserted the assistance of an attorney, the timing and the content and context of a reference to counsel may help determine whether there has been an unambiguous assertion of the right to the assistance of an attorney in dealing with a custodial interrogation by law enforcement officers. Appleby, 289 Kan. 1017, Syl.

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