August 21, 2019

Tenth Circuit: Statements Made After Promise of No Jail Time Involuntary; Error Not Harmless

The Tenth Circuit Court of Appeals issued its opinion in Sharp v. Rohling on Wednesday, July 15, 2015.

Kimberly Sharp was homeless and living in a camp with her two children, her boyfriend, and two other men when they were approached by David Owen, an activist who used unconventional methods to get homeless people off the streets. Owen had destroyed several campsites and carried photos of the burned campsites to show other homeless people, and he would frequently hand the homeless people phones and order them to call their families. When Owen approached Sharp’s camp, an altercation ensued and two of the men hog-tied him and dragged him into the woods. His body was found several weeks later and police began investigating the murder by interviewing homeless people camping near where his body was found. When the police approached Sharp, Detective Bryan Wheeles noted she looked scared and took her aside for questioning, eventually transporting her to the Topeka Police Department to be interviewed.

At the police department, Wheeles told Sharp she was under arrest and Mirandized her without specifically telling her why she was being arrested. Sharp told Wheeles she was sitting around a campfire when Owen approached the camp and told the homeless people they should not camp and should call their families. He also said he would have burned their camp if they were not there, upsetting everyone. An altercation ensued, and two of the men knocked Owen to the ground. One man dragged Owen into the woods. Sharp headed into the woods to see what was going on and saw one man over Owen with an axe poised to kill him. She told the man not to kill Owen, and the third man brought a rope which was used to hog-tie Owen. The two men continued to beat him. The third man then burned all Owen’s possessions while the other two dragged Owen into the woods. Sharp never saw him again. Wheeles asked Sharp if she had helped burn Owen’s stuff because she was scared, and she admitted she had, asking if she was going to jail. Wheeles said “no, no, no, no, no, no, no, no, no, no, no,” and continued that Sharp would be a witness unless she did “something dumb and jam[med] [her]self.” Sharp then detailed her role in burning Owen’s phones and notebooks.

When Sharp informed Wheeles that her kids were with another homeless person at another camp, he told her that person was a registered sex offender and they drove together to retrieve her kids. She asked about finding shelter for herself and the children and Wheeles promised he would take care of that. He drove her to the campsite, where Sharp gave a detailed recreation of what happened, including positioning, and informed Wheeles that she told the men not to kill Owen. At that point, he stopped her and asked if she said “don’t kill him” or “don’t kill him here,” to which she replied “don’t kill him here.” Sharp was transported back to the police station, where Wheeles asked her a few more questions before leaving her in the interview room with her kids. She was informed about an hour later that the district attorney had decided to charge her with murder, and she became angry and upset, saying Wheeles had lied to her and tricked her.

Sharp was charged with one count of felony murder and the indictment was later amended to include kidnapping with the intent to injure or terrorize. The state trial court held a hearing on whether to suppress Sharp’s statements as involuntary. Wheeles testified that he never made any promises to Sharp and that the district attorney would make the ultimate charging decision. Sharp did not testify, but her attorney argued the statements were involuntary because they were induced by Wheeles promises to be lenient and to find shelter for her and her children. The trial court reviewed the videos of the interview and reenactment and ruled that Sharp’s statements were admissible because Wheeles did not make any promises and because Sharp’s demeanor suggested she was relaxed and not impaired. The prosecution used Sharp’s reenactment video in its case, relying heavily on her statement “don’t kill him here,” and also relying heavily on her admission that she helped burn Owen’s possessions. She was convicted on both counts and sentenced to life with the possibility of parole after 20 years for the murder count and a concurrent 61 months for the kidnapping count.

Sharp appealed to the Kansas Supreme Court, arguing her statements were inadmissible because they were involuntary due to her reliance on Wheeles’ promises of lenience and shelter. The supreme court affirmed the trial court’s decision not to suppress the statements, finding substantial evidence supported that she was not acting under any promises during the interview. One justice dissented, criticizing the majority for relying on Wheeles’ testimony from the suppression hearing and arguing anyone in Sharp’s position would have interpreted Wheeles’ statements as a promise that she would not go to jail. The dissent also disagreed with the majority’s characterization of the promises concerning Sharp’s children as a “collateral benefit,” finding instead that a promise to help Sharp’s young children was no less compelling than a promise of leniency. Sharp then filed a federal habeas petition in district court. The federal district court denied Sharp’s petition but granted her a COA.

The Tenth Circuit noted that AEDPA precluded habeas relief as to a claim decided on the merits in state court unless (1) the decision was contrary to clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts. The Tenth Circuit found Sharp met her burden based on 28 U.S.C. § 2254(d)(2).

Sharp argued that Wheeles coerced her confession by promising leniency and assistance in finding shelter. The Tenth Circuit found that, on de novo review, Sharp’s statements were involuntary once Wheeles said she would not go to jail and the trial court committed harmful error by allowing the statements. Wheeles said “no” ten times when Sharp asked him if she was going to jail, followed by a statement that she would be a witness unless she incriminated herself. The Kansas Supreme Court found Sharp “was not operating under any promises,” and characterized Wheeles’ behavior as an exhortation to be truthful. The Tenth Circuit found that, after receiving a confession from Sharp, Wheeles immediately and unequivocally reassured Sharp she was not going to jail, which was essentially a promise. The Tenth Circuit found the supreme court’s finding that Wheeles made no promises unreasonable. The supreme court’s alternate theory that he only promised leniency if she did not incriminate herself was also unreasonable, since she already had.

The Tenth Circuit also found that the Kansas Supreme Court unreasonably applied the facts to the promise to find shelter for Sharp and her children. Wheeles used the word “promise” in his assurance that he would help Sharp find shelter, but the trial court and state supreme court both found Sharp was not “operating under a promise.” The Tenth Circuit ruled that this was error.

The Tenth Circuit next concluded that Sharp’s incriminating statements made after the promise of leniency were involuntary. Prior to the detective’s promises, Sharp had only incriminated herself as to burning Owen’s possessions. Trial testimony from the third homeless man at the camp indicated Sharp was angry at Owen and wanted to show him what it was like to have his stuff burned. Her confession to burning Owen’s stuff, admissible because it preceded Wheeles’ promise of no jail, was likely insufficient to support a conviction. The prosecution emphasized Sharp’s statement “don’t kill him here” at trial to implicate her in the killing, and the Tenth Circuit found that this made the error of admitting her involuntary statements not harmless.

The Tenth Circuit reversed the district court and granted Sharp’s petition for a writ of habeas corpus as to her convictions, subject to the state’s right to retry her within a reasonable time.