Ripkowski v. State

• Decision Date: 07 November 2001
• Docket Number: No. 73,590,73,590
• Citation: 61 S.W.3d 378
• Parties: (Tex.Crim.App. 2001) BRITT ALLEN RIPKOWSKI, Appellant v. THE STATE OF TEXAS
• Court: Texas Court of Criminal Appeals

Page 378

61 S.W.3d 378 (Tex.Crim.App. 2001)

BRITT ALLEN RIPKOWSKI, Appellant v. THE STATE OF TEXAS

No. 73,590

Court of Criminal Appeals of Texas

November 7, 2001

Rehearing Denied December 19, 2001

ON DIRECT APPEAL FROM HARRIS COUNTY

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

David Cummingham, Houston, for appellant.

Carmen Castillo, Mitchell, Assist. DA, Houston, Matthew Paul, State's Attorney, Austin, for State.

Keller, P.J., delivered the opinion of the Court, joined by Keasler, Hervey, Holcomb, and Cochran, JJ.

OPINION

Appellant was convicted of capital murder,¹ the jury answered the future dangerousness issue affirmatively,² and the trial judge sentenced appellant to death. Direct appeal to this Court is automatic.³ Appellant raises twenty-four points of error. We will affirm.

1. Oral Statements

In points of error one through six, appellant complains about a non-recorded oral statement he made to the police concerning the location of the victim's body. In points seven through twelve, he complains about a videotaped confession. He alleges violations of Articles 38.21, 38.22, 38.23, Miranda v. Arizona,⁴ the Fifth and Sixth Amendments to the United States Constitution, and counterpart provisions in the Texas Constitution. We consider only the Miranda issue because appellant has failed to present argument or authorities in support of the other allegations in these points of error.⁵

In reviewing claims of Miranda violations, we conduct the bifurcated review articulated in Guzman v. State.⁶ We afford almost total deference to the trial court's rulings on questions of historical fact and on application of law to fact questions that turn upon credibility and demeanor while we review de novo the trial court's rulings on application of law to fact questions that do not turn upon credibility and demeanor.⁷

a. Facts

Monica Allen and appellant dated for awhile but had a stormy relationship. Allen had a two-year-old daughter, Dominique Frome, from a prior relationship. Appellant had lived with Allen at various times in Salt Lake City, Utah and in Houston, Texas. At the time of the events giving rise to this prosecution, they were living apart, with appellant in Houston and Allen in Salt Lake City. On December 22, 1997, a young woman's body was found by the side of a roadway near Monticello, Utah. The body was not identified at that time. On December 30th, a missing persons report was filed on Allen and her daughter. The FBI and the Salt Lake City Police Department (SLCPD) began an investigation of the disappearances. Detective Kelly Kent of the SLCPD was one of the officers assigned to investigate. On January 15, 1998, the body found in Utah was identified as Allen's.

The following day, Special Agent Gary Steger, with the Houston Division of the FBI, contacted appellant at his apartment in Houston. Steger and another FBI agent introduced themselves and told appellant that they were investigating the disappearance of Allen and her child. They talked with appellant, received his permission to search the apartment, and conducted a search that revealed nothing of importance to the investigation. Special Agent Steger did see a crack pipe in the apartment. That same day, appellant called Detective Kent, with whom he had past dealings. Appellant told Kent that he, Allen, and Dominique had left Salt Lake City together but parted ways at St. George, Utah on December 21st. Appellant called Kent again on January 19th. This time he told her that he had taken Dominique to Houston and that a friend had taken her to Mexico.

On January 20th, appellant called Kent and told her that he had been in contact with the FBI and he believed that they were following him. That same day, the FBI searched appellant's apartment pursuant to a federal search warrant. Appellant told Special Agent Steger the revised story of taking Dominique to Houston and a friend taking her to Mexico. Appellant said that he had used Allen's van to drive from Salt Lake City to Houston, and he told FBI agents where the van was located. The van was seized by the FBI and Special Agent Steger returned appellant to his apartment.

On January 22nd, appellant was arrested by federal agents. Special Agent Eric Johnson read appellant his Miranda warnings and transported him to the Houston FBI office. Johnson testified that he did not threaten appellant or make any promises. Johnson denied that appellant was disoriented during this time period. During a pat-down search of appellant, Johnson discovered some phone cords and a necktie. During transit, appellant told officers that he should have made them kill him.

Appellant was turned over to Special Agent Steger at the Houston FBI office. Steger noticed that appellant had some scratches on his face and an injury to his wrist. The wrist injury consisted of a one-sixth of an inch deep slash across the wrist. Appellant told Steger that he had tried to slit his wrists the night before. Steger took appellant to a nurse for medical treatment. Afterwards, appellant was placed in an interrogation room for questioning. Also present in the interrogation room were Special Agent Steger, Detective Kent, and Charles Oliver, a homicide investigator for SLCPD. Steger read the Miranda warnings. Oliver testified that Steger read each warning individually, and after each one, Steger asked appellant if he understood his rights. Appellant appeared to understand his rights and appeared to knowingly, intelligently, and voluntarily waive the rights. Oliver further testified that appellant did not appear to be under the influence of drugs or alcohol. When asked questions, appellant responded coherently and appropriately. After warnings were read and rights waived, Detective Kent interviewed appellant.

Kent also testified that appellant appeared to understand the warnings. Kent observed that appellant read the waiver of rights form aloud and that appellant appeared to voluntarily, knowingly, and intelligently waive his rights. No promises, threats, or abuse of any kind occurred before or during the interrogation. According to Kent, appellant did not appear to be under the influence of drugs or alcohol, he appeared to understand what was going on, and when asked questions, he responded appropriately. This first interview by Kent was not electronically recorded. During the interview appellant admitted to killing both Allen and Dominique. Appellant related that, on December 24th, he killed Dominique, put her body in a suitcase, and buried the suitcase in an undeveloped area near the Sheldon Reservoir in northeast Harris County.

Appellant agreed to help locate Dominique's body. He went with law enforcement agents to the area he described and they attempted to find the victim's body. But the terrain was swampy and covered with underbrush, and appellant exhibited confusion about the body's location. Several law enforcement agents testified that they believed appellant was honestly trying to help locate the body but was unsuccessful. Appellant informed officers that the body could be further up the same road about a half mile.

After this failed attempt to find the child's body, Steger took appellant to the homicide division of the Houston Police Department. Appellant was placed in an interview room with Detective Kent and Houston Police Officer Robert King. King testified that he read appellant the required warnings and appellant nodded his head after each individual warning was read. Both King and Kent testified that appellant appeared to understand his rights and appeared to waive those rights voluntarily. Kent then conducted a videotaped interrogation of appellant. Kent and King both testified that appellant did not appear to be under the influence of drugs or alcohol during the interrogation and that appellant responded appropriately to questions. During the interrogation appellant again described how he killed Allen and Dominique and again described how he disposed of Dominique's body. Appellant also stated that he had used cocaine extensively up to and just prior to arrest, that he had recently attempted suicide by trying to slit his wrists, and that he had tried to kill himself by taking an overdose of pills shortly before his arrest. After the taping ended, appellant was shown a map, and he pointed out the area on the map where Dominique's body was located.

On January 23rd, armed with this information, law enforcement agents found Dominique's body. That same day, appellant submitted physical samples for toxicological testing, which later revealed the presence of cocaine in appellant's system.

At a hearing on appellant's motion to suppress evidence, appellant presented expert testimony from Dr. Paula Lundberg-Love that a combination of stressful conditions, bipolar mental disorder, and cocaine binging rendered appellant incompetent to understand and waive his rights.

After hearing the evidence, the trial court found that appellant had knowingly, intelligently, and voluntarily waived his rights. The trial court held the complained-of statements to be admissible.

b. Analysis

An inquiry into the waiver of Miranda rights "has two distinct dimensions."⁸ First, the waiver must be "voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception."⁹ Second, the waiver must be made "with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it."¹⁰ As to the voluntariness issue, appellant does not contend, and the record does not show, that law enforcement agents coerced appellant in any manner. "[T]he Fifth Amendment privilege is not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion.'"¹¹ If appellant's cocaine use and mental disorders alone impelled him to confess, that is of no constitutional consequence.

However, these factors are...