State v. Larson

• Decision Date: 06 October 1981
• Docket Number: No. WD,WD
• Citation: 623 S.W.2d 69
• Parties: STATE of Missouri, Respondent, v. Joseph W. LARSON, Appellant. 31941.
• Court: Missouri Court of Appeals

Page 69

623 S.W.2d 69

STATE of Missouri, Respondent, v. Joseph W. LARSON, Appellant.

No. WD 31941.

Missouri Court of Appeals, Western District.

Oct. 6, 1981.

C. Keith Larson, Kansas City, for appellant.

Dale K. Miller, Pros. Atty., Savannah, for respondent.

Before MANFORD, P. J., and DIXON and NUGENT, JJ.

NUGENT, Judge.

Joseph W. Larson appeals his conviction in a court-tried case of possession of nonintoxicating beer by a minor in violation of § 312.407, RS Mo 1978. ¹ The State of Missouri filed no brief and did not appear for oral argument. We reverse the conviction.

In support of his claim for relief, Larson contends that the trial court erred (1) in permitting the sheriff to testify concerning statements made by Larson over objection that he was not advised of his constitutional rights in accordance with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), (2) in failing to grant his motion for acquittal in that, as a matter of law, he did not possess nonintoxicating liquor, and (3) in permitting the sheriff to relate statements by Larson as evidence tending to show guilt without independent proof of the essential elements of the corpus delicti.

On the evening of October 4, 1979, the Andrew County sheriff's department was alerted to look for a red Volkswagen being operated on 71 Highway. The car's occupants were alleged to be clubbing mailboxes. Two deputies spotted a car matching the description and followed it to a drive-in restaurant. As Larson, the driver, and two other boys were getting out of the Volkswagen, Deputy Harold Erickson saw an open can of beer on the floor of the driver's side. A search of the automobile produced two more open cans of beer and three unopened cans. Deputy Erickson advised the boys that they were "going to the sheriff's office and talk to the sheriff". He rode to the office with Larson. The deputy said that because he "didn't place him under arrest" ², he did not advise Larson of his constitutional rights.

Larson was charged with possession of intoxicating liquor, a violation of § 311.325. The Missouri Uniform Traffic Ticket issued to the defendant described the violation and included most of the relevant data identifying Larson, but omitted his birth date. At trial Sheriff Reed Miller testified that when the deputies brought the boys in he undertook an interrogation. At first he thought Larson was a juvenile, therefore, he followed his practice of treating juveniles differently because they "understand it better". Thus he gave the defendant an abbreviated version of the Miranda advice and warning. He advised Larson that the defendant "didn't have to (talk) if he didn't want to" and "that everything he said could be used against him ...." That was "about the extent of it." He did not advise the defendant that he had a right to an attorney and to have his attorney present nor that defendant could terminate the questioning at any time. Defense counsel objected to any testimony as to the statements defendant had made because of the failure of the deputy and the sheriff to advise the defendant of his rights and because the essential elements of the corpus delicti of the offense had not been shown by other evidence. The trial court overruled the objections and admitted evidence of the defendant's statements about his possession of the beer in the car and as to his age.

The evidence concerning Larson's age was somewhat confused. According to the deputy, Larson said that he was a juvenile, that he was sixteen. Defendant's objection that a defendant's statement may not be used to prove the corpus delicti and that the testimony was unresponsive were both sustained. Despite the Miranda and the corpus delicti objections of defense counsel to Sheriff Miller's testimony, however, evidence of defendant's statements as to his age and his date of birth was admitted.

The sheriff testified that Larson said that he was sixteen. The sheriff "verified" defendant's statement and "made out a juvenile report ...." Apparently, someone else later called to his attention that Larson was not a juvenile. Larson had given the sheriff the date of birth which appeared on the defendant's driver's license, and the sheriff "verified" it by reference to the license. For reasons not apparent in the record, neither the defendant's date of birth nor the driver's license made its way into evidence or the record. No other evidence of defendant's age was offered.

The trial court supported its verdict of guilty of possession of nonintoxicating liquor with findings that Larson and his two companions each had an open can of beer and that in the car were three more unopened cans. The court also found defendant to be seventeen years old and found that defendant had been properly advised of his constitutional rights. Counsel for defendant then asked the court if its decision was based "on the fact that the Miranda warning is not required on a misdemeanor". The court responded: "I based it on the fact he was advised, as well as the fact in my view it is not applicable and his conviction was without his testimony or his statement. That will be the finding."

Obviously, at trial some confusion prevailed regarding the mandate of Miranda v. Arizona, supra. The deputy sheriff stated that he did not advise the defendant as to his constitutional rights because he had not arrested defendant. In Miranda at 444, 86 S.Ct. at 1612, the Supreme Court held that custodial interrogation, "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way", is the event which gives rise to the necessity for the warning. No doubt Deputy Erickson intended significantly to deprive Larson of his freedom of action. He told the defendant that he was going to "take him ... to talk to the sheriff". When asked what he would have done if the defendant said, "I don't want to go", the deputy responded, "I would have radioed the sheriff how I felt and placed him under arrest." Certainly, from the time the deputies accosted him, the defendant was in custody or otherwise deprived of his freedom in a significant way.

The trial court also ruled that Miranda is not applicable to misdemeanor cases. We find no Missouri authority for that broad proposition. In State v. Neal, 476 S.W.2d 547 (Mo. en banc 1972), the court at 552-53 specifically declined to rule whether Miranda was or was not applicable to "any misdemeanor case" while adopting the prevailing view that "in cases involving motor vehicle offenses" Miranda warnings are not required. But in Bendelow v. United States, 418 F.2d 42, 47 (5th Cir. 1969), the Fifth Circuit sustained a district court ruling that, when a trooper stopped a car on the highway and asked the driver, defendant, for his license and registration, no warning was required because no "in-custody" interrogation had taken place to that point in the confrontation. Nevertheless, after the police discovered an alteration in defendant's driver's license, an apparent misdemeanor under Florida law, the Miranda warning was in order, investigation then having focused on defendant. In this case, Larson's situation is much like Bendelow's; although charged with a misdemeanor, the charge was not a traffic offense, and the motor vehicle offense exception would have no relevance to the appropriateness of the Miranda warning.

We note a further indication of a misunderstanding of the scope of Miranda in the receipt of the testimony of the sheriff. Apparently, both the sheriff and the trial court believed that a juvenile is not entitled to full advice of his rights under the constitutions of the state and the United States. That is not the law. At this late date no doubt should exist as to the extension of the protection of Miranda to juveniles. In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); State v. Olds, 603 S.W.2d 501, 507 (Mo. en banc 1980); and In Re K. W. B., 500 S.W.2d 275, 279 (Mo.App.1973). A child taken into custody in connection with the investigation of a crime must not only "be taken immediately and directly before the juvenile court or delivered to the juvenile officer", § 211.061, he must be accorded all of the rights to which he would be entitled if he were an adult, including full advice as to his constitutional rights in compliance with the Miranda decision.

In such circumstances, receipt in evidence over defendant's objection of any statement he made to the deputy or to the sheriff was error.

Because the trial court may not have considered any of Larson's statements, including his statement as to his age, we review the record to determine whether the essential...