State v. Bittick, No. 73074

• Decision Date: 09 April 1991
• Docket Number: No. 73074
• Citation: 806 S.W.2d 652
• Parties: STATE of Missouri, Respondent, v. Wallace Dean BITTICK, Appellant.
• Court: Missouri Supreme Court

Page 652

806 S.W.2d 652

STATE of Missouri, Respondent, v. Wallace Dean BITTICK, Appellant.

No. 73074.

Supreme Court of Missouri,

En Banc.

April 9, 1991.

Rehearing Denied May 3, 1991.

Susan L. Hogan, John A. Klosterman, Columbia, for appellant.

William L. Webster, Atty. Gen., Andrea K. Spillars, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERTSON, Judge.

Wallace Dean Bittick appeals his bench-tried conviction for first-degree robbery. The issues on appeal center around Bittick's right against self-incrimination guaranteed by the Fifth Amendment as applied to the States under the due process clause of the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), and as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Specifically Bittick claims (1) that having requested an attorney, the confession he made to the police following that request may not be used constitutionally as evidence against him; (2) that he did not voluntarily, knowingly or intelligently waive his Fifth Amendment rights because of his intoxication, delirium tremens and his low level of education; (3) that police officials misled him as to the procedure by which he could obtain an attorney, in violation of Section 600.048, RSMo 1986; and (4) that the state failed to present substantial evidence to prove his guilt beyond a reasonable doubt.

The Court of Appeals, Western District, by a divided court, reversed the conviction outright, finding appellant's Section 600.048.1 argument dispositive. Pursuant to Article V, Section 10, the court of appeals transferred the case to this Court, finding the issues presented matters of general interest or importance that should be decided by this Court. We have jurisdiction. The judgment of the trial court is reversed and the cause remanded for a determination of whether appellant's confession was the product of a knowing and intelligent waiver of his Fifth Amendment rights and for such further proceedings as may be appropriate.

I.

On June 30, 1988, Bittick heard that the police were interested in questioning him in connection with several armed robberies that had been committed in the St. Joseph, Missouri area and voluntarily went to the St. Joseph Police Station for questioning. There, the police arrested Bittick, placed him in a cell, and summoned St. Joseph Police Detective Mike Hirter to conduct the interrogation. Upon Hirter's arrival, Hirter took Bittick to an interrogation room where he read Bittick a form advising him of his rights under Miranda v. Arizona.

Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions, then with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish. If you decide to answer questions now without a lawyer present, you still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.

Hirter asked Bittick if he understood these rights. Bittick answered that he did. Hirter then read a second portion of the form dealing with the waiver of the Miranda rights.

I've read this statement of my rights. I understand what my rights are. Keeping these rights in mind, I'm willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me, or pressure or coercion of any kind have been used against me. I am 44 years of age. I attended school through the 9th grade. I am employed by "None."

Hirter asked if Bittick had any questions. Bittick replied, "How do I get one of those appointed attorneys?"

Hirter testified that he explained to Bittick that if he, Bittick, were charged with the crime, he could request the court to appoint an attorney. But, Hirter continued, if Bittick wanted an attorney present "it would be his responsibility to contact one."

Bittick blurted out, "I was hoping someone would catch me and blow me away." Hirter interrupted asking Bittick "if he was telling me he wanted to talk to me or if he wanted a lawyer."

Bittick said, "I guess I have to talk to you."

But Hirter responded that he "did not have to talk to me; that he had the right to remain silent."

"I guess I'll talk to you," Bittick decided. Hirter read Bittick the waiver portion of the Miranda form again to Bittick and inquired, again, if Bittick understood the waiver or had any questions. Bittick indicated that he understood the waiver, that he had no questions, and signed the waiver form.

At the hearing on the motion to suppress his confession, Bittick testified that he had been drinking for approximately two weeks and was suffering from delirium tremens at the time of his interrogation. Hirter recalled Bittick's hands shaking, but could not recall any scent of alcohol emanating from the appellant.

The trial court rendered oral findings of fact at the conclusion of the hearing on the motion to suppress the confession. The court said,

[T]he court finds from the evidence that Sergeant Hirter talked to the defendant in regards to State's Exhibit 1 [the Miranda rights and waiver form]; that he fully advised him of his rights. The Court further finds that the defendant asked for an attorney, and Sergeant Hirter told him he couldn't have one; that he could get one, but he wouldn't furnish him one unless he was charged. The Court finds that the defendant said then he guessed he would have to talk to him. And Sergeant Hirter told him he did not have to talk to him; and he was not required to talk to him, but he could talk to them if he wanted to.

The Court finds that he was advised of his rights, and that he chose to talk after being told that he did not have to talk to them without the presence of any attorney.... But I'm satisfied from the evidence heard that he voluntarily waived his right not to talk to them without the presence of an attorney, and that he did talk to them, and that this statement was freely and voluntarily given and it would be admissible in evidence....

The trial court also expressed some confusion about the state of the Supreme Court's Miranda rulings and concluded, "Unless there's something in the law that says that if you tell a man he has the right to have an attorney and he says he wants one, then that's the end of everything."

Bittick's attorney cited the trial court to Eagan v. Duckworth, 843 F.2d 1554 (7th Cir.1988), rev'd, 492 U.S. 195, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989). The trial court indicated that he would read the relevant authority and "then I'll make a final ruling." Subsequently, the trial court admitted Bittick's confession into the evidence. Appellant waived a jury and the trial court found him guilty of first degree robbery in violation of Section 569.020, RSMo 1986. This appeal followed.

We consider and dispose of Bittick's first two points on appeal despite our reversal and remand on his third point. We do so because the issues there raised and discussed at II., A. and B., of this opinion challenge the constitutionality of appellant's confession on different grounds, each of which is relevant to the trial court's determination of the ultimate admissibility of the confession on remand.

II.

In reviewing the trial court's ruling on a motion to suppress evidence, an appellate court will view the facts and reasonable inferences therefrom in the light most favorable to the trial court's ruling, disregarding all contrary evidence and inferences. State v. Giffin, 640 S.W.2d 128, 130 (Mo.1982). If the appellate court finds the evidence sufficient to sustain the trial court's findings, it will affirm. State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985).

A.

Bittick first contends that the trial court erred in admitting his confession into evidence, claiming that Bittick "unequivocally" requested an attorney and that Hirter continued to question appellant after that request. He argues that once he requested an attorney, all questioning was "required to cease."

Miranda rights are "not themselves rights protected by the Constitution but ... instead measures to insure that the right against compulsory self-incrimination [is] protected." Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182 (1974). In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the court held that an accused who requests an attorney, "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85 (emphasis added). Recently, in Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), the Supreme Court interpreted its Edwards holding as follows: "Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities." Minnick, 498 U.S. at ----, 111 S.Ct. at 492 (emphasis added).

In this case, the trial court found that Bittick's statement, "How do I get an appointed attorney?" constituted a request for an attorney. Despite the equivocal nature of the "request," we are bound by the trial court's finding. The question thus becomes, under Edwards as interpreted by Minnick, whether Bittick "initiated the conversation or discussion with the authorities." Minnick, 498 U.S. at ----, 111 S.Ct. at 492. To the extent that Bittick's argument assumes that all questioning must cease upon a request for counsel, it is quite wrong. Edwards holds that...