State v. Beck, 65915

• Decision Date: 26 February 1985
• Docket Number: No. 65915,65915
• Parties: STATE of Missouri, Respondent, v. Joseph Nicholas BECK, Appellant.
• Court: Missouri Supreme Court

Page 155

687 S.W.2d 155

STATE of Missouri, Respondent, v. Joseph Nicholas BECK, Appellant.

No. 65915.

Supreme Court of Missouri En Banc.

Feb. 26, 1985.

As Modified April 2, 1985.

Rehearing Denied April 2, 1985.

Timothy A. Braun, Christine Miller Hendrix, St. Charles, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

BILLINGS, Judge.

Defendant Joseph Nicholas Beck was convicted of two counts of capital murder under § 565.001, RSMo 1978 and sentenced to two consecutive terms of life imprisonment. The Missouri Court of Appeals, Eastern District, reversed the judgment. We granted transfer because of the general importance and interest of the questions presented by this case. We affirm.

This case involves two threshold questions: (1) whether defendant made a knowing and intelligent waiver of the protections afforded him under the Fifth Amendment ¹ before he made oral and written statements to St. Charles County Sheriff's deputies during his post-arrest interview in Florida on September 5, 1981 and on the plane trip back to St. Charles on September 8, 1981; and (2) whether the statements defendant made on September 5, 1981 and September 8, 1981 were obtained in violation of his right to counsel under the Sixth Amendment. ²

The victims, Herbert and Georgiana Kemp, were the grandparents of Julie Ann Parton--defendant's sixteen year old girlfriend and the mother of his five month old son. Parton and the baby boy resided with the Kemps. Sometime after the baby was born, the Kemps, dissatisfied with their granddaughter's relationship with defendant, threatened to take the child away from her if she did not end her affair with defendant.

To silence the Kemps' criticism of his relationship with Parton, defendant murdered the Kemps on August 27, 1981, in the family room of their home. Earlier in the day, defendant and Parton had carefully planned the crime. On August 27, 1981, having just parked their car after returning from work, Mr. and Mrs. Kemp began to enter their home through the family room which was connected to the garage. Defendant, waiting inside the family room and armed with Mr. Kemp's rifle, shot Mrs. Kemp first and then fired three bullets into Mr. Kemp. He then shot Mrs. Kemp a second time, in the head. While these gruesome events were occurring, Parton was upstairs in the kitchen with the baby boy. ³

After killing Mr. and Mrs. Kemp, defendant and Parton removed the victim's bodies from the house and placed them in the trunk of Mr. Kemp's car. They then drove to a local bank where they cashed checks on the Kemps' account. That evening they drove to a wooded area near Festus, Missouri, where they dumped the victims' bodies. The bodies of the slain couple were discovered the following day. Defendant and Parton fled the state that night.

Defendant, on August 30, 1981, telephoned his mother and instructed her to find him a lawyer. The next day defendant's mother called Christine Miller Hendrix--an Assistant Public Defender in St. Charles County--and requested that Ms. Hendrix represent defendant in the present case. Defendant's mother apparently called Ms. Hendrix because earlier she had been appointed to represent defendant on four pending but unrelated felony charges.

On September 1, 1981, Ms. Hendrix called St. Charles County Sheriff, ⁴ Edward Uebinger, and requested that he notify her when defendant was apprehended. After speaking with Ms. Hendrix, Sheriff Uebinger was advised by Assistant Prosecuting Attorney Kohl that he had no legal duty to notify Ms. Hendrix because she had not yet been appointed defendant's counsel in the case. ⁵

That same day, Prosecutor Kohl, in an ex parte proceeding, swore out an affidavit to obtain a warrant for defendant's arrest. During this period of time, the sheriff learned that defendant was planning to meet a relative of his at the Miami, Florida airport. Responding to this lead, the sheriff sent two deputies carrying a warrant for defendant's arrest to Miami on September 4, 1981. Defendant was arrested at the Miami airport on September 5, 1981. The oral and written statements that defendant sought to suppress, but which were admitted into evidence, were made after his arrest on September 5, 1981, and on the plane flight back to St. Charles on September 8, 1981.

Initially, it should be noted that in reviewing the trial court's disposition of defendant's motion to suppress, ⁶ this Court necessarily must defer to the trial court's superior opportunity to determine the credibility of the witnesses and the weight of the evidence. State v. Boggs, 634 S.W.2d 447 (Mo. banc 1982). Needless to say, this rule is a basic tenet of appellate review--and one deserving of strict compliance.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that "when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized." 384 U.S. at 478, 86 S.Ct. at 1630. To protect this constitutionally grounded right, the Court delineated a number of procedural safeguards that must be made known to an individual taken into custody. However, in the same breath, the Court, speaking through Chief Justice Warren, stated that "after such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement." 384 U.S. at 479, 86 S.Ct. at 1630.

Here, the record reveals that before defendant was informed of his Miranda rights on September 5, 1981, the deputy then present asked him if he could read and write. After indicating to the officer that he could read and write, defendant was handed an identical copy of the "rights card" that was about to be used to appraise him of his Miranda rights. With card in hand, defendant was then advised of his Miranda rights by the officer. Furthermore, after completing each line of the card, the deputy paused and asked defendant if he fully understood the meaning of what had just been read to him. To each successive inquiry, defendant made an affirmative response. And to further document his comprehension, defendant initialed each line on the card.

After the officer had finished reading defendant his Miranda rights, he asked defendant if he was interested in giving a statement. Defendant answered yes and then proceeded to give oral and written statements of exculpatory nature; and at no point throughout this period of time did defendant request the presence of Ms. Hendrix--or any other attorney. On September 8, 1981, defendant was again given his Miranda rights and again chose to make incriminating statements before seeking the advice of an attorney.

In arguing that this waiver was not knowing and intelligent, the defendant has focused exclusively upon the fact that he was not informed of Ms. Hendrix' requests. The sheriff's failure to inform defendant of this information was magnified into official misconduct ⁷ that never took place but which according to the defendant was responsible for vitiating his ability to make a knowing and intelligent waiver.

Determining whether a waiver constitutes a "knowing and intelligent relinquishment or abandonment of a known right or privilege, [is] a matter which depends in each case 'upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' " Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981), quoting with approval Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); See also, North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).

Defendant's contention that his waiver was not knowing and intelligent is premised on the notion that the information that was not disclosed to him would have had a material bearing on his reasoning process had it been made known to him. However, his own testimony refutes the validity of this argument. According to his testimony and that of his mother's, he called his mother a few days before his arrest and instructed her to find him a lawyer. It is simply incredulous to think that at the time of his arrest, defendant had forgotten that just a few days earlier he had specifically requested his mother to find him a lawyer.

Other factors to be considered under this analysis are the background, experience and conduct of the accused. In Fuentes v. Moran, 572 F.Supp. 1461 (D.R.I.1983), aff'd., 733 F.2d 176 (1st Cir.1984) the court--faced with this very same issue--noted:

The record is replete with references to myraid criminal matters with which Fuentes had been involved. He was obviously ... no stranger to the criminal justice system. While such facts do not, in and of themselves, lighten the government's burden ... they do show rather clearly that Fuentes had considerable background upon which to draw when apprehended. The defendant's 'background' is, of course, a factor in the equation. (citations omitted).

572 F.Supp. at 1472, n. 4.

Here, the defendant was not a neophyte when it came to dealing with the police and the use of attorneys. At the time defendant brutally murdered the Kemps, he was awaiting sentencing on four unrelated felonies and on probation for a number of misdemeanors.

In light of the careful attention the deputies gave to insuring that defendant was properly informed of his Miranda rights, his unequivocal responses and determined conduct, evince nothing less than a deliberate, firm, knowing, and intelligent choice to speak without the prior counsel of Ms. Hendrix or any other attorney. ⁸ After reviewing all of the evidence presented, the trial court concluded that defendant had effected a knowing and intelligent waiver of his Fifth Amendment rights. This conclusion is amply...