               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                          No. 118,349

                                      STATE OF KANSAS,
                                          Appellee,

                                                v.

                                      WILLIE E. PARKER,
                                         Appellant.


                               SYLLABUS BY THE COURT

1.
       Statements made during a custodial interrogation must be excluded under the Fifth
Amendment to the United States Constitution unless the State demonstrates it used
procedural safeguards, i.e., Miranda warnings, to secure the defendant's privilege against
self-incrimination.


2.
       The voluntariness of a defendant's Miranda rights waiver can be implied under the
circumstances. Certain factors may contribute to a finding of voluntariness, such as the
defendant explicitly saying that he or she understood his or her rights and then
proceeding to answer questions.


3.
       There is no requirement that Miranda rights be read aloud in order to obtain a
legally sufficient waiver of the right to remain silent.


       Appeal from Wyandotte District Court; BILL KLAPPER, judge. Opinion filed March 13, 2020.
Affirmed.



                                                1
        Meryl Carver-Allmond, of Kansas Capital Appellate Defender Office, argued the cause and was
on the briefs for appellant.


        Daniel G. Obermeier, assistant district attorney, argued the cause, and David Greenwald,
assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general,
were with him on the brief for appellee.


The opinion of the court was delivered by


        ROSEN, J.: Willie Parker takes this direct appeal to the Kansas Supreme Court
from his conviction of one count of premeditated first-degree murder. Finding no error,
we affirm.


                               FACTUAL AND PROCEDURAL BACKGROUND


        Willie Parker was employed as a driver for First Class Medical Transportation, a
delivery company that takes patients to and from the Kansas City Transitional Care
Center, which is across the street from the University of Kansas Medical Center. Michel
Ziade was his employer. On July 28, 2015, Parker and a coworker delivered a patient
around noon and then returned to a parking garage where their van was located. Parker
and Ziade got into a verbal altercation in which Parker complained about his working
hours and having to work night shifts.


        Ziade accused Parker of being late picking up a passenger, and the two exchanged
insults and profanity. At one point, Parker said, "You can't fucking tell me what to do."
The argument devolved into a fist fight. Witnesses reported that Ziade was bent over
while Parker repeatedly hit him in the face. The witnesses did not see Ziade hit or strike
Parker. Another employee, Stanley Burleson, pulled them apart and stood between them,
and Ziade asked the bystanders to call the police.


                                                     2
       Parker then went to his van, opened the door, and stood for a short time retrieving
something. After about 60 seconds, Ziade went into the parking garage and walked over
to his car. He was about to get in when Parker came after him, wielding a pistol. Ziade
turned and walked quickly or ran from the parking garage. Parker pursued Ziade at a fast
walking pace, brandishing a gun, and shot at Ziade several times. After the first shot,
Ziade ran out of the underground parking garage. Parker followed him and fired four
more shots. Ziade fell to the sidewalk and rolled over on his back. Parker walked up to
him and shot him one more time before turning and walking back into the parking garage.
He went to his van, grabbed a bag, and then walked away down an alley.


       Although he was taken to the hospital almost immediately, Ziade died within
minutes of the shooting. He died from a bullet that had been fired into his back and
penetrated his heart.


       On July 31, 2015, based on the statements of eyewitnesses and a search of Parker's
home, the State filed an Information charging Parker with premeditated first-degree
murder. On August 6, 2015, investigators located Parker in a church building where he
barricaded himself for some six hours before tear gas forced him to surrender into
custody. Within about an hour, detectives began a lengthy interrogation, in which Parker
admitted killing Ziade.


       Parker was sent to Larned State Hospital for a competency evaluation, which
disclosed that, despite signs of possible mental illness, he was competent to communicate
with counsel and to be tried. Parker nevertheless was uncooperative, refusing to speak
with at least one of his appointed counsel.


       The case went to trial in June 2017, and Parker presented no witnesses in his
defense. The court instructed the jury on premeditated first-degree murder and on the


                                              3
lesser included offense of second-degree murder. The jury found Parker guilty of first-
degree murder. He took a timely appeal to this court.


                                         ANALYSIS


Motion to Suppress

       Parker made several self-incriminating statements during the interrogation that
took place immediately after his arrest. Before his trial, Parker moved to suppress these
statements. The district court denied that motion. Parker argues on appeal that the district
court should have suppressed his statements because the investigators did not take
sufficient steps to ensure that he understood his Miranda rights. We conclude that,
despite the unusual manner in which Parker received an explanation of his rights—
necessitated by his refusal to allow the detectives to explain the rights out loud—no
reversible error occurred.


       A dual standard is used when reviewing a decision ruling on a motion to suppress
a confession. We review the factual underpinnings of a district court's ruling under a
substantial competent evidence standard. The ultimate legal conclusion drawn from those
facts is reviewed de novo. We will not reweigh the evidence, assess the credibility of the
witnesses, or resolve conflicting evidence. State v. Dern, 303 Kan. 384, 392, 362 P.3d
566 (2015).


       The voluntariness of a waiver of a defendant's Miranda rights is a question of law
that an appellate court determines de novo based on the totality of the circumstances.
State v. Kirtdoll, 281 Kan. 1138, 1144, 136 P.3d 417 (2006).


       Statements made during a custodial interrogation must be excluded under the Fifth
Amendment to the United States Constitution unless the State demonstrates it used


                                             4
procedural safeguards, i.e., Miranda warnings, to secure the defendant's privilege against
self-incrimination. These safeguards are triggered only when an accused is (1) in custody
and (2) subject to interrogation. State v. Regelman, 309 Kan. 52, 59, 430 P.3d 946 (2018).
On appeal, the appellate court assesses whether a Miranda waiver was knowing,
voluntary, and intelligent under a totality of the circumstances test. State v. Mattox, 305
Kan. 1015, 1042, 390 P.3d 514 (2017).


       The voluntariness of a defendant's Miranda rights waiver can be implied under the
circumstances. Kirtdoll, 281 Kan. 1138, Syl. ¶ 1. Certain factors may contribute to a
finding of voluntariness, such as the defendant explicitly saying that he or she understood
his or her rights and then proceeding to answer questions. 281 Kan. at 1146-47; see also
State v. Wilson, 215 Kan. 28, 30, 523 P.2d 337 (1974) (when defendant says he or she
understands his or her rights and makes no showing that statements were coerced or in
some other way involuntary, Miranda safeguards are satisfied).


       There is no requirement that Miranda rights be read aloud in order to obtain a
legally sufficient waiver of the right to remain silent. See, e.g., United States v. Collins,
40 F.3d 95, 98 (5th Cir. 1994), cert. denied 514 U.S. 1121 (1995); United States v.
Bailey, 468 F.2d 652 (5th Cir. 1972); United States v. Alexander, 441 F.2d 403, 404 (3d
Cir. 1971); United States v. Van Dusen, 431 F.2d 1278 (1st Cir. 1970); State v. Olquin,
216 Ariz. 250, 252-53, 165 P.3d 228 (Ct. App. 2007), review denied (2008); Wise v.
Commonwealth, 422 S.W.3d 262, 271 n.4 (Ky. 2013); State v. A.M., 237 N.J. 384, 400,
205 A.3d 213 (2019); People v. Warren, 2 A.D.3d 1317, 1318, 770 N.Y.S.2d 266 (2003),
leave to appeal denied 1 N.Y.3d 636 (2004); State v. Strobel, 164 N.C. App. 310, 313-14,
596 S.E.2d 249 (2004), cert. denied 545 U.S. 1140 (2005).


       There is also no requirement that interrogators follow a specific protocol for
determining whether questioned individuals understand their rights. To be sure,
interrogators may not wait until questioning is underway to administer Miranda warnings
                                               5
and then rely on statements made before they gave the warnings. See, e.g., Missouri v.
Seibert, 542 U.S. 600, 617, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004) (when
investigators intentionally employ two-step interrogation strategy, postwarning
statements related to substance of prewarning statements must be excluded unless
curative measures taken before postwarning statement is made).


       Here, however, the detectives provided Parker with a written statement of his
rights along with an offer to read them out loud, and he read the statement of rights, all
before the substantive interrogation began. Although the better practice is that
interrogators read the Miranda summary of rights out loud and make follow-up inquiries
about whether the person being questioned understands those rights, that protocol was not
possible in this case, because Parker insisted that an oral explanation of the rights was
condescending behavior that he would not tolerate. In this unusual situation, we must
look to the circumstances and the words used by both the detectives and Parker in order
to determine whether he understandingly waived his rights against self-incrimination.


       State v. Davis, 306 Kan. 400, 417, 394 P.3d 817 (2017), sets out a nonexclusive
list of factors to be examined in evaluating whether a confession was voluntary. The
factors are:


       "'(1) the accused's mental condition; (2) the duration and manner of the interrogation; (3)
       the ability of the accused on request to communicate with the outside world; (4) the
       accused's age, intellect, and background; (5) the fairness of the officers in conducting the
       interrogation; and (6) the accused's fluency with the English language. [Citations
       omitted.]'"


       Before denying Parker's motion to suppress, the district court went through these
factors in order, resolving them in favor of the State:



                                                    6
       "The court resolves factor number one, the issue of competency, in favor of the State.
       Parker seems to be competent. He did not appear to be suffering from any type of
       delusions about why he was there. As previously indicated he did not seem to be under
       lingering effects of any chemical agents, he seemed to understand the reason for the
       interview and there was no violation as far as number one is concerned. As to factor
       number two the court is directed to consider the duration and manner of the interrogation.
       The interrogation lasted one hour 49 minutes and 45 seconds. At no time were the
       detectives in any way threatening Parker. Only Parker and the two detectives were
       present. The detectives were not armed. Parker was not restrained in any way. There were
       no handcuffs or leg shackles. Parker was of course confined in the interview room with
       the detectives but the court finds nothing amiss with the confinement. As to factor
       number three, the ability of the accused to request to communicate with the outside
       world, Parker made no request to communicate with the outside world. The detectives
       made it clear during the statement that he had a right to consult with an attorney if he
       chose to do so. He did not make that request. As to factor number four, the accused's age
       intellect and background, detective Sutton testified that Parker was 40 years of age, that
       he appeared to be well educated and fluent. Parker's background was not really discussed
       but it did not appear from a review of the video that anything about his age, his intellect
       or his background would have affected his ability to give a voluntary statement. The fifth
       factor is the fairness of the officers in conducting the interrogation. The interrogation was
       a very conversational event. No threats were made, no shouting and no aggressive
       movements by either of the detectives. They remained seated and calm throughout the
       interview. The court finds nothing that would have affected fairness of the investigation
       based upon the interrogation or based upon the officers' behavior. The defendant seemed
       to speak and understand English without any problem. The court must make its
       determination of admissibility of defendant's statement based on the totality of the
       circumstances. The prosecution has born its burden of proving Parker's confession is
       admissible by a preponderance of the evidence, See State v. Gilliland, 294 Kansas 519,
       528-529, 276 P.3d 165 (2012), and viewing the totality of the circumstances surrounding
       the statement believes it was freely and voluntarily given."


       Parker insists that the officers did not do enough to ensure he understood his
rights. He points to several areas of concern—his troubled mental state, the recent
standoff with police and exposure to tear gas, and an asserted inability to communicate
                                                    7
with anyone outside the interrogation. Parker centers his argument for reversal on the
asserted failure of the investigators to make sure that he understood his rights:


               "Because the police in this case did nothing to ensure that Mr. Parker—a
       defendant who they had been informed was mentally ill and who had freshly been
       sprayed with tear gas at the end of a long standoff—understood the Miranda warnings on
       the sheet of paper handed to him, his purported waiver of his rights was invalid."


       Our review leads us to the conclusion that substantial competent evidence
supported the district court's factual findings and that those findings showed a voluntary
waiver of Miranda rights.


       The topic of Parker's rights came up a couple of times during the interrogation.
After a few preliminary discussions of what he wanted to drink, Detective Sutton said:
"We'll be able to sit down and have a good conversation, but I do have to read you your
Miranda Rights, okay?" The following dialogue then took place:


       "[Parker:] I will not be signing any—
       "[Detective Jason Sutton:] Okay.
       "[Parker:] —documents.
       "[Sutton:] That's okay.
       "[Parker:] . . . From here on out.
       "[Sutton:] That's, that's understandable. I, I hear ya.
       "[Parker:] Uh . . . if you wish me to read it, I will, you don't have to read it to me.
       "[Sutton:] That's the laws that it says I have to read it.
       "[Parker:] Uh-uh, I didn't need it, but I will read it.
       "[Sutton:] Yeah, if you wanna read it and y— and you understand that, and then that's
       great, too.
       "[Parker:] Well, it—
       "[Detective Anthony Sanchez:] Do you wanna read it out loud then?
       "[Parker:] No, I don't, I don't need no one to, to read it for me, I don't need to read it out
       loud.

                                                      8
       "[Sutton:] Okay. You wanna read it?
       "[Parker:] Ye—yeah.
       "[Sutton:] Yeah, we, uh, we started workin' on that case, and, and it became obvious to
       us that there was two sides to this, because the video wasn't telling everything, and that's
       one thing, you know, like, we'd talk to ya, Mr. Parker, is we'd like to hear more about
       what you've been talkin' about in your own words, in your own way. You know, if you're
       in a position where you wanna do that with us, then we appreciate that. If you're in a
       position where you don't want an, an attorney with you, then we agree to that with you
       and we understand that, and we can sit here and, and discuss whatever you wanna discuss
       about how that day went, the parts you wanna talk about and the parts you don't wanna
       talk about, and like you said, it, there was a certain level of an agreement between you
       and Mr. Ziade, and, and, obviously, he broke that, that, uh, level of, of trust and, and
       agreement between you two, somethin' a man shouldn't do, m'kay? So if all that's okay
       with you, then, uh, we would like to hear more about, um, your thoughts on this."


       Parker looked at the statement of Miranda rights for 62 seconds and then put the
form down. He refused to initial or sign the statement. He then proceeded to answer (or
refuse to answer) questions about the shooting. Much later in the interrogation, the
subject of Miranda rights came up again.


       "[Sanchez:] Okay. Okay, when we said that we're gonna say the rights to you, you got
       upset. I mean, is there a reason why you didn't want us readin' the rights to you? Uh, we
       understand you can read, you're an educated man, we know that, especially with the, you
       know, readin' the dictionary, thesaurus, all that.
       "[Parker:] Who told you I read the dictionary?
       "[Sanchez:] I'm sayin' we, we interviewed several people.
       "[Sutton:] I seen two dictionaries in your house.
       ....
       "[Sanchez:] [T]hat's the reason why we wanted to know about the Miranda, because we
       understand you can read and you understand that you know that, but you got upset
       because you didn't want him readin' 'em or me readin' 'em to you.
       "[Parker:] What, one, I said I wasn't goin' sign anything.
       "[Sanchez:] No, we un—we respect that.

                                                     9
       "[Parker:] Two, yes, it did make me upset, because I don't need no one treatin' me like a
       child, and that's exactly what they did.
       "[Sanchez:] Who did?
       "[Sutton:] First Class? [Parker's employer.]
       "[Sanchez:] Yeah, but we, we understand you're not a child, you're a man.
       "[Parker:] Doesn't matter what they, uh, you understand.
       "[Sanchez:] You know, the whole thing is we're just tryin' to see who you are. So, like I
       said, you refused to sign it, but you understood your rights?
       "[Parker:] I understand everything I read."


       First, we note that the refusal to sign a rights waiver form is not tantamount to a
desire not to be questioned. Subsequent voluntary responses to inquiries after an initial
Miranda warning can create an effective waiver. State v. Boyle, 207 Kan. 833, 841, 486
P.2d 849 (1971).


       Second, we acknowledge that there were signs of mental illness but conclude that
substantial competent evidence supports the district court's findings with regard to
Parker's competence, Parker's ability to contact the outside world, and the fairness of the
officers in conducting the investigation. We further conclude that the findings show
Parker's waiver was voluntary.


       Going into the interrogation, Detective Sutton spoke with people who knew
Parker. They told him that Parker was eccentric: he would read the dictionary, he drank
large quantities of vinegar, and he had said he thought he was God. These topics came up
obliquely during the interrogation, with Parker responding with some annoyance that he
wished people would not talk about him outside his presence.


       Ultimately, however, Parker has not directed us to anything that shows his mental
condition rendered him unable to voluntarily waive his rights or the officers' conduct
unfair. In fact, Parker does not argue that he actually did not understand his rights. He

                                                     10
only asserts that the police should have done more to ensure that he understood. This is a
subtle yet important distinction. Parker points to nothing in the record that suggests that
he did not understand his rights or the interrogation process. In fact, toward the end of the
interrogation, Parker stated that he understood what he read.


       Although he was not always responsive and he was often argumentative, Parker
displayed a clear understanding of what was going on and the roles of the detectives. For
example, he sometimes responded to questions by turning them back around and
challenging the detectives in a somewhat humorous fashion to figure out what had
happened. When they asked how he had managed to leave the crime scene so quickly, he
laughed and said, "That's somethin' you goin' have to find out." Later on, after the
interrogators speculated how he might have gotten away, he said, "Well, y'all the
detectives."


       His statements indicated that he understood that he did not have to provide
affirmative answers to questions from the police. When the detectives asked him why he
finally surrendered to police and suggested he was hoping they would shoot him, he
responded, "I don't know anything about all that. . . . You tryin' to get me to say somethin'
that I don't have no ideal [sic] about." He also clearly understood the general nature of the
charge against him: when an interrogator asked him if he knew what he was charged
with, Parker responded, "Prolly chargin' me with first degree murder."


       The overall tenor of the interrogation showed a defendant who knew what crime
he had committed and how he had done it; who understood that the police were trying to
obtain incriminating statements from him; who was playing a cat-and-mouse game with
the interrogators; and who understood his rights and how the interrogation process
worked.




                                             11
       Collins, 40 F.3d 95, presented a situation remarkably similar to what we address
here. The Fifth Circuit wrote:


                 "It is axiomatic that an accused must be informed of his Miranda rights in a way
       that ensures his knowing, intelligent, and voluntary exercise or waiver thereof. The
       record supports the district court's finding that Collins was effectively informed of his
       rights. Collins perused the form for a minute before returning it to the agents with the
       words 'I ain't signing that.' One agent testified that Collins appeared to read and
       understand the form. We perceive no error in the district court's crediting of this
       testimony and determining that Collins was informed of and understood his rights
       considering his age—38, his education—GED degree, and his familiarity with the
       criminal justice system as a consequence of his extensive criminal history.
                 "Whether Collins waived his Miranda rights presented a factual question for the
       district court. Such waivers may be direct or, in some instances, they may 'be clearly
       inferred from the actions and words of the person interrogated.' The mere answering of
       questions is insufficient to show waiver; however, there must be some affirmative action
       demonstrating a waiver of Collins' Miranda rights. We find such action to be present
       herein.
                 "The record reflects that after Collins refused to sign the form one of the agents
       told him, 'You know, you can talk to us if you want. You don't have to. You read the
       form. But if you want to talk to us, you can.' At that point Collins replied 'Okay.'
       Thereafter, upon being questioned about the Dallas robberies he confessed. In this
       setting, the trial court did not err in finding that Collins waived his Miranda rights. The
       confession was properly admitted." 40 F.3d at 98-99.


       Like the Fifth Circuit in Collins, we conclude that the district court here made no
error when it admitted the interrogation statements.


Jury Instruction


       Before trial, Parker requested a voluntary manslaughter committed upon a sudden
quarrel or in the heat of passion instruction. The district court denied the request and

                                                     12
instructed the jury on premeditated first-degree murder and intentional second-degree
murder. Parker asserts that the voluntary manslaughter instruction was justified and that
reversal is required.


       The analytic steps for reviewing the denial of a requested jury instruction are as
follows:


       "'(1) First, the appellate court should consider the reviewability of the issue from both
       jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
       next, the court should use an unlimited review to determine whether the instruction was
       legally appropriate; (3) then, the court should determine whether there was sufficient
       evidence, viewed in the light most favorable to the defendant or the requesting party, that
       would have supported the instruction; and (4) finally, if the district court erred, the
       appellate court must determine whether the error was harmless, utilizing the test and
       degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011).'" State
       v. Williams, 303 Kan. 585, 598-99, 363 P.3d 1101 (2016).


       Parker preserved this instruction issue, presenting the proposed voluntary
manslaughter instruction to the district court and arguing that the testimony of some
witnesses supported it. The instruction would have been legally appropriate because
voluntary manslaughter is a lesser included offense of first-degree murder. See State v.
Gallegos, 286 Kan. 869, 874, 190 P.3d 226 (2008).


       The question, then, is whether the instruction would have been factually
appropriate. Voluntary manslaughter is "knowingly killing a human being committed: (1)
Upon a sudden quarrel or in the heat of passion; or (2) upon an unreasonable but honest
belief that circumstances existed that justified use of deadly force . . . ." K.S.A. 2018
Supp. 21-5404(a). The core elements of voluntary manslaughter are an intentional killing
and legally sufficient provocation. State v. Campbell, 308 Kan. 763, 775, 423 P.3d 539
(2018).

                                                    13
       Although the statute does not define "sudden quarrel" or "heat of passion," we
have defined "heat of passion" as "'any intense or vehement emotional excitement of the
kind prompting violent and aggressive action, such as rage, anger, hatred, furious
resentment, fright, or terror', based 'on impulse without reflection.'" State v. Hayes, 299
Kan. 861, 864, 327 P.3d 414 (2014). The provocation must be "'sufficient to cause an
ordinary man to lose control of his actions and his reason.'" 299 Kan. at 864.


       "Sudden" means "'[h]appening without warning; unforeseen[;] [c]haracterized by
hastiness; abrupt; rash[;] [c]haracterized by rapidity; quick; swift.'" And "quarrel" means
"'[a]n altercation or angry dispute; an exchange of recriminations, taunts, threats, or
accusations between two persons.'" State v. Bernhardt, 304 Kan. 460, 476, 372 P.3d 1161
(2016). "Mere words or gestures, however offensive, do not constitute legally sufficient
provocation." Hayes, 299 Kan. at 866.


       In the present case, the surveillance cameras showed and the eyewitnesses testified
that, after Burleson got between Parker and Ziade, Parker took about a minute to walk
back to his van, retrieve a handgun, and walk quickly in pursuit of Ziade, firing as he
pursued him.


       In Campbell, this court held that the conduct was neither abrupt nor unforeseen
when the defendant left a house, took the time to cock his gun, and returned to the house,
whereupon he shot the victim. Under those facts, this court held that the conduct
"reveal[ed] a level of calculation" that belied heat of passion or loss of control. 308 Kan.
at 776. We cited to Hayes, which in turn cited to State v. Wade, 295 Kan. 916, 925, 287
P.3d 237 (2012), holding that a defendant's "calculated conduct" undercut a claim that the
action was taken "upon impulse without reflection," thus rendering a heat-of-passion
instruction inappropriate. 308 Kan. at 776.




                                              14
       Here, Parker took approximately 60 seconds to go from his van to the underground
garage and shoot Ziade. There was no active confrontation at the time; Ziade was
walking away from him.


       Parker urges this court to find sufficient evidence in the record to demonstrate a
heated quarrel that would support a voluntary manslaughter instruction. There is indeed
evidence of an argument in which both men used strong language in an accusing manner,
and there is even some evidence (not supported by other witnesses or the surveillance
recordings) that Ziade may have struck back against Parker. But the evidence is
substantial and uncontested that, following the argument, Parker walked back to his van,
spent some time retrieving a gun from a duffel bag, walked back to Ziade, and shot him
in the back as he attempted to get away. In his interrogation, Parker did not say that he
lost control of his ability to make decisions; he instead stated that he went for his gun
because he had been unable to kill Ziade with his fists and he wanted to finish the
undertaking. There is so little evidence of heat of passion at the time of the shooting and
so much evidence of calculated decision-making that, in line with Campbell and Wade,
the voluntary manslaughter instruction was not factually appropriate. We find no error in
the district court's rejection of the requested instruction.


       The district court is affirmed.


       PATRICK D. MCANANY, Senior Judge, assigned.1




1
 REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No.
118,349 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the
vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

                                               15
