State v. Bates

• Decision Date: 15 December 1980
• Docket Number: No. 11554.,11554.
• Citation: 607 S.W.2d 753
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Stephen BATES, Defendant-Appellant.
• Court: Missouri Court of Appeals

607 S.W.2d 753

STATE of Missouri, Plaintiff-Respondent, v. Stephen BATES, Defendant-Appellant.

No. 11554.

Missouri Court of Appeals, Southern District, Division Two.

September 22, 1980.

Motion for Rehearing and for Transfer Denied October 20, 1980.

Application to Transfer Denied December 15, 1980.

John Ashcroft, Atty. Gen., Jan Bond, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Terry Daley, Public Defender, Albert Crump, Jr., Asst. Public Defender, Rolla, for defendant-appellant.

Appellant's Motion for Rehearing and for Transfer Denied October 20, 1980.

MAUS, Judge.

The defendant was convicted by a jury of second degree felony murder and sentenced to imprisonment for 25 years. The gravamen of the state's case was that the defendant, in the process of stealing the victim's jacket, billfold and pocketknife, pushed the intoxicated victim from his pickup truck into the snow as a result of which he died. The defendant appeals presenting two points of alleged error. While the defendant does not in general question the sufficiency of the evidence, a brief summary of the facts is required as the background for consideration of the two "points relied on". Considering the evidence and all inferences reasonably to be drawn therefrom most favorably to the state as required by the jury verdict, State v. Franco, 544 S.W.2d 533 (Mo. banc 1976), those facts are as follows.

On the evening of January 24, 1979, the defendant and the victim spent several hours drinking beer in a bar in Rolla. The victim drank more than the defendant and was quite intoxicated when the two left the bar at approximately 9:30 p. m. The record does not show if they had been previously acquainted. They left in the victim's pickup truck, with the victim driving. The defendant thought the victim was going to drive him to another bar. Instead, the victim drove to the defendant's apartment. There, the victim shoved the defendant as if to push him from the pickup. The defendant pushed the victim back and the victim fell over in the seat. The defendant assumed the victim had passed out because of too much alcohol. The defendant then got in the driver's seat and drove a short distance from Rolla on Highway CC. There, even though the road was covered with ice and snow, the defendant pushed the victim from the pickup onto the roadway. The victim was clad only in blue jeans and a T-shirt. The temperature was approximately 10 degrees and there was a strong wind blowing. The defendant still thought the victim had passed out from alcohol and "figured the man would sober up when the cold hit him". The body of the victim was discovered a few minutes past 10:00 p. m. There was evidence a vehicle with snow tires similar to those on the victim's pickup truck had run over the victim's legs. However, there was no direct evidence that it was the victim's pickup and it was established the bruise marks on the victim's legs had nothing to do with his death.

The defendant left in the victim's pickup intending, according to his statement, to go to the home of a friend near Cardwell, Missouri. He stopped about 11:00 p. m. at the home of an aunt near Licking, Missouri, but she refused to admit him. Again according to his statement, he got lost and wound up in Jonesboro, Arkansas, where the pickup ran out of gasoline. He then hitchhiked to the home of his friend in Cardwell. He stayed there until the next morning when he hitchhiked back to Rolla. He was arrested at his apartment the following evening. The pickup was recovered in Jonesboro, Arkansas, although a fire had been started with a plastic seat cushion in the cab of the pickup. The defendant had taken the victim's jacket, billfold and pocketknife. The jacket and pocketknife were left with the friend. The billfold was never recovered.

The defendant's first point is that the trial court erred in admitting his statement to deputy sheriff Smith. When he was arrested, the defendant was given the Miranda warning,¹ although the arresting officers did not question him. The defendant said he wanted a lawyer. Upon reaching the jail, he called a lawyer, but did not reach him. He was then consecutively questioned by two officers of the Missouri Highway Patrol. It is not shown that either officer knew of the questioning by the other. The defendant stated the first officer advised him of his Miranda rights, but he made no statement concerning whether or not the second officer did likewise. Defendant related that the first officer encouraged him to make a statement in that the officer promised him the officer would get him "life in the penitentiary or life in the Fulton State Hospital for the rest of my life". Defendant related the second officer extended to him a promise of help. He made no statements to these officers but told them he wanted a lawyer and wanted to be locked up. He was not immediately taken to a cell but was left in what was termed the deputies' room.

About 15 minutes later deputy sheriff Smith, who had nothing to do with the investigation, entered that room to check on a hot-water heater. Smith testified he greeted the defendant who said "I would like to talk to you Smitty". On direct examination the defendant ambiguously related a slightly different prelude, but on cross-examination tacitly admitted this opening gambit as stated by Smith.

However, Smith stopped the defendant from making any statement until Smith left the room and returned with a "waiver of rights" form and a tape recorder. The defendant read and signed the waiver of rights form. Smith then recorded an interview with the defendant. The deputy opened that interview with an oral statement of the full Miranda warning which contained the defendant's acknowledgment of his understanding of his rights and that he was "ready and willing to answer questions or to make a statement without first consulting with a lawyer and with having a lawyer present during questioning". There was a further acknowledgment that no promises or coercion had been used against him. Smith then took a concise oral statement, the transcript of which demonstrates that it was taken with fairness to the defendant, who answered the questions alertly. The recording was taken to a stenographer and transcribed. The typed statement containing the Miranda warning, waiver of rights and acknowledgment, was returned to the defendant who read the transcribed statement and signed each page.

Nevertheless, the defendant argues that the statement was inadmissible because he had told the arresting officer and the highway patrolmen that he wanted a lawyer. He primarily relies upon that part of Miranda which reads as follows:

If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 723 (1966).

He also relies upon State v. Stevenson, 523 S.W.2d 349 (Mo.App.1975).

While not couched in those terms, his argument is based upon the proposition that Miranda compels the conclusion that his request for a lawyer was irrevocable and a subsequent statement made without the presence of a lawyer is inadmissible, a doctrine that has been referred to as the "per se rule". The general question of the right of an individual to recant an expressed desire to remain silent or for a lawyer has been dealt with by the United States Supreme Court in two subsequent cases.² In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the defendant, who was arrested in connection with certain robberies, expressed a desire to remain silent and his interrogation ceased. When he was subsequently questioned concerning a murder, after being advised of his rights, he gave an inculpatory statement. In holding that statement admissible, the court said: "Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent." Mosley, supra, 423 U.S. at 102-103, 96 S.Ct. at 326, 46 L.Ed.2d at 321.

In Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), the defendant, having been arrested for murder, expressed a desire for a lawyer. However, as a result of officers' remarks in his presence, he directed the officers to the victim's body. In rejecting that evidence the court said: "The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not." Brewer, supra, 430 U.S. at 405-406, 97 S.Ct. at 1243, 51 L.Ed.2d at 441. (Emphasis added)

In Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the defendant asked for a lawyer, consulted one lawyer and made arrangements to consult with another upon reaching the place to which he was being transported. During the trip, the remarks of the officers transporting him prompted him to reveal the location of a shotgun. The court held that evidence admissible as the officers' remarks were found not to be the equivalent of interrogation and in so doing, the court noted: "Since we conclude that the respondent was not `interrogated' for Miranda purposes, we do not reach the question whether the respondent waived his right under Miranda to be free from interrogation until counsel was present." Innis, supra, 100 S.Ct. at 1688, 64 L.Ed.2d at 306.

The per se rule has been recognized. People v. Cunningham, 49...