Elo v. State

• Decision Date: 14 September 1982
• Docket Number: No. 33579,33579
• Parties: George Steven ELO, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 644

639 S.W.2d 644

George Steven ELO, Appellant, v. STATE of Missouri, Respondent.

No. 33579.

Missouri Court of Appeals Western District.

Sept. 14, 1982.

Roger M. Baron, Grantham & Baron, Tuscumbia, for appellant.

William K. Haas, Asst. Atty. Gen., John Ashcroft, Atty. Gen., Jefferson City, for respondent.

Before MANFORD, P.J., and KENNEDY and WASSERSTROM, JJ.

MANFORD, Presiding Judge.

This appeal follows a denial of post conviction relief, pursuant to a Rule 27.26 motion. The judgment is affirmed.

Movant presents four points charging the judgment of the trial court was clearly erroneous because (1) the trial court made a finding that no testimony was received about statements made by movant when, in fact, the evidence revealed the contrary, (2) movant's statements were involuntary and made without proper waiver of the Miranda rights, (3) movant's statements and the recovered handgun and money were obtained as fruit of the poisonous tree and inadmissible, and (4) movant was denied a pre-sentence investigation prior to sentencing.

The record reveals the following pertinent facts. Movant was, by a jury, found guilty of murder first degree August 25, 1976. The homicide resulted from movant's armed robbery of a service station. On October 22, 1976, movant was sentenced to life imprisonment. Although initial appellate jurisdiction was in our state Supreme Court (Art. 5 § 3 Mo. Const., as amended), the denial of relief under Rule 27.26 vests this court with jurisdiction. Bryant v. State, 604 S.W.2d 669 (Mo.App.1980). No appeal from that conviction was ever perfected. This motion was filed, counsel appointed, a hearing held, and findings of fact and conclusions of law were entered, satisfying the Rule in Fields v. State, 572 S.W.2d 477 (Mo.banc 1978).

In his motion, movant alleged the violation of his constitutional rights because (1) the Miranda warning was not read in the presence of his father, (2) all statements received from movant after arrest were invalidated by the action of the arresting officers, (3) tape recordings of movant's statements were inadmissible because they contained gaps and were partially inaudible and the securing of them was a product of the infringement of movant's constitutional rights, (4) the verdict directing instruction was invalid because it did not give the jury the discretion to assess less than a life sentence upon a finding of guilty, and (5) movant was denied a pre-sentence investigation.

On December 30, 1975, movant was 17 years of age. He was at his parents' home that evening when the county sheriff and a deputy arrived. The sheriff placed movant under arrest and instructed the deputy to read the Miranda warning to movant. The deputy read the Miranda warning in the presence of movant, his parents, and the sheriff. The deputy then went back over the Miranda rights again. At this point, the sheriff and movant's father were engaged in a conversation out of the presence of the others. The second Miranda warning included a discussion as to whether movant understood the details of the warning. This "second warning" was in the presence of movant and movant's mother. Movant acknowledged he understood his rights, but stated he had nothing further to say. The sheriff took movant into custody. As movant departed his parents' home, his father told movant to tell the truth. Movant was placed in a vehicle with the sheriff alone. During the approximate 20 mile trip to jail, movant and the sheriff engaged in conversation about the homicide. The sheriff stated he probably initiated the conversation. In this conversation, movant told the sheriff he had entered the service station while a robbery was in progress. He told the sheriff a bearded man threw some money at him and told him not to say anything. Movant made no admission of having committed the offense.

Upon arrival at the jail, movant signed a written Miranda waiver. Movant testified before signing the waiver he had read the waiver and understood it. Prior to this time, movant had not made any statement admitting that he had committed the robbery or homicide.

At the evidentiary hearing on movant's 27.26 motion, the sheriff testified that movant, while in jail, voluntarily showed the sheriff where he had hidden the gun he had used in the robbery/murder. After the gun was retrieved and movant returned to jail, he was again advised of his Miranda rights, signed another waiver, and, at this point, admitted he had shot the victim. At the same hearing, movant was asked if he recalled his trial testimony. Movant remembered at trial he testified he entered the service station with the intent to rob it and during the robbery the victim struck him, he fell or stumbled and the gun discharged.

Following the evidentiary hearing on the 27.26 motion, the court found movant had been advised of his Miranda rights at the time of his arrest; that movant's statements, oral, written, and tape recorded were not tainted as fruit from the poisonous tree, and, further, there was no constitutional violation of movant's rights because no pre-sentence investigation was conducted.

Movant points (1), (2), and (3) are so interrelated that they will be disposed of conjunctively. As noted above, no direct appeal was perfected from movant's conviction. The record reveals a notice of appeal was filed. The record is not absolutely clear, but it appears the appeal was not pursued further due to lack of funds by movant to pay private counsel. The record does not reveal movant made any request to proceed in forma pauperis, nor is that an issue on the appeal. This procedural detail is noted because the constitutional errors claimed by movant are trial errors and appellant argues he is entitled to proceed under Rule 27.26 since these errors are of a constitutional stature and have not otherwise been addressed by appeal. Movant is correct as regards Rule 27.26, the pertinent part which reads:

"27.26(b)(3). A proceeding under this Rule ordinarily cannot be used as a substitute for direct appeal ... but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal."

The foregoing language has been construed, however, not to extend any rights to collaterally attack alleged constitutional deficiencies which an accused has knowingly and voluntarily waived, Nickens v. State, 506 S.W.2d 381, 386 (Mo.1974).

The record herein is replete with facts and circumstances clearly revealing movant knowingly and voluntarily waived any and all available constitutional rights. However, this court will discuss ex gratia the claims of movant. Movant's argument can be reduced to three simple allegations. First, it is alleged the court's judgment is clearly erroneous because it made a specific finding that, "... Movant's contention that the trial court erred in permitting Sheriff Earnest to testify as to movant's statements made in the automobile is groundless. It appears that there was no testimony at trial about statements made by the movant during the ride to the jail with Sheriff Earnest." Movant finally points out that the Sheriff testified both at trial and at the evidentiary hearing that he engaged movant in conversation. As noted above, this issue has been waived by movant, but it is also worthy to note that movant has, in his first alleged error on this appeal, engaged in a very clever play on words. In the referenced testimony of the sheriff, there is acknowledgement and discussion of a conversation between movant and the sheriff. There is nothing which discloses any statement by movant which incriminated him. In fact, movant testified he falsified a story about a bearded robber and otherwise disclaimed any involvement during the automobile trip with the sheriff. The "play on words" comes from the above-quoted portion of the court's fact finding. It is obvious the court used the word, "statement" to describe any incriminating statement by movant, and not, as movant suggests that there was no conversation which finding would have been against the evidence. Movant's first argument has no merit.

Secondly, movant claims his "statements" were involuntary because he was only 17 years of age and the Miranda warning was not given in the presence of his father. Movant cites State v. Christian, 604 S.W.2d 758, 763 (Mo.App.1980). Movant cannot avail himself of the rule in Christian because the facts and circumstances herein clearly are distinguishable from those in Christian. In the instant case, the initial Miranda warning was given movant in the presence of movant, the sheriff, the deputy, the younger brother of movant, movant's mother, and movant's father. A second reading and discussion of the Miranda rights occurred in the presence of movant, the deputy, the younger brother, and movant's mother. There is no merit to movant's contention. At the same time movant makes much of his physical age of 17 years. This point was considered by the court in Christian, along with other facts and circumstances not present in the case herein. It has been observed that "... in cases of adolescents, age alone without more is insufficient to prevent a valid waiver of Miranda rights", State v. Hunter, 619 S.W.2d 883, 886 (Mo.App.1981). Movant extends his challenge to the voluntariness of his statements by alleging that, after the deputy read his rights to him, he told...