State v. Brown

• Decision Date: 11 April 2000
• Citation: 18 S.W.3d 482
• Parties: (Mo.App. E.D. 2000) . State of Missouri, Plaintiff/Respondent, v. George Brown, Defendant/Appellant. Case Number: ED75894 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

18 S.W.3d 482 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Plaintiff/Respondent, v. George Brown, Defendant/Appellant.

Case Number: ED75894

Missouri Court of Appeals Eastern District

Handdown Date: 04/11/2000

Appeal From: Circuit Court of Madison County, Hon. Stan J. Murphy

Counsel for Appellant: Gary E. Brotherton

Counsel for Respondent: John Munson Morris, III and Stacy L. Anderson

Opinion Summary: Defendant inmate was convicted of possession of a homemade knife in a correctional facility upon evidence of his confession that the knife was his. He appeals on the grounds that his confession was not voluntary and was inadmissible under Edwards v. Arizona because he had previously told a prison official he wanted an attorney and no attorney had been made available to him before prison officials contacted him about making a statement.

AFFIRMED.

Division Two Holds: Edwards does not apply because there was no evidence showing defendant's request for counsel occurred during a custodial interrogation, and, thus, his Miranda right to counsel was not triggered in the initial interview.

Opinion Author: Kathianne Knaup Crane, Presiding Judge

Opinion Vote: AFFIRMED. R. Dowd, Jr., and Sullivan, JJ., concur.

Opinion:

Defendant, George Brown, was charged with possession of a prohibited article, a homemade knife, on the premises of a correctional center, in violation of Section 217.360(4) RSMo (Cum. Supp. 1997). At trial, the state introduced evidence that, after waiving his rights under Miranda, defendant acknowledged that the knife was his. After the jury found defendant guilty, the trial court sentenced defendant to a term of fifteen years to run consecutively with the life term he was already serving.

For his primary point on appeal, defendant asserts that the trial court erred in admitting his confession because, eleven days prior to admitting ownership of the knife, he told a correctional officer that he wanted an attorney and no attorney was made available to him before an officer next contacted him. He contends that Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L.Ed.2d 378 (1981) prohibits prison officials from contacting him without having provided him with an attorney once he invoked his right to counsel. We affirm on the grounds that Edwards does not apply because there was no evidence showing defendant's request for counsel occurred during a custodial interrogation and, thus, his Miranda right to counsel was not triggered during the first contact with officials.

On September 24, 1997, defendant was an inmate at the Potosi Correctional Center and was housed in cell 3A-31 with Derek Jennings. That day, Corrections Officer Sam Bergner learned that defendant had a new tattoo. While defendant was present, Officer Bergner searched defendant's cell for a tattoo gun. Instead of a tattoo gun, Officer Bergner found and seized a homemade knife from the corner of the top bunk mattress belonging to defendant's cellmate.

The following day, Officer Joseph Rosenberg, a zone lieutenant employed by the Missouri Department of Corrections at the Potosi Correctional Center, interviewed defendant. He testified that defendant made the following statement: "I want legal counsel and I want a mother fucking lie detector. I want the knife dusted for fingerprints and I don't know about any knife in this cell." Officer Rosenberg wrote the statement on a violation report form, gave a copy to defendant, and the interview concluded.¹

On October 6, 1997, Fred Johnson, a functioning manager at the Potosi Correctional Center, held an adjustment hearing for defendant regarding his conduct violation for possession of dangerous contraband. Johnson went to defendant's cell and asked defendant if he wanted to participate in the hearing. Defendant agreed and Johnson read defendant his Miranda rights, which defendant then waived. Johnson asked defendant if he would like to make a statement whereupon defendant admitted ownership of the knife.

Defendant was thereafter charged by information with possession of a prohibited article on the premises of a correctional center, in violation of Section 217.360(4) RSMo (Cum. Supp. 1997). Defendant filed a motion to suppress his statements which the trial court denied after a hearing. At trial defendant renewed his motion and objected to the introduction of his October 6 statement.

I. Admission of October 6 Statement

For his first point defendant contends that the trial court erred in overruling the motion to suppress his October 6 statement and in admitting that statement over objection at trial. Defendant argues that his September 25 request for counsel mandated that officers not contact him again until counsel had been provided to him and that, therefore, under Edwards, the October 6 contact rendered his October 6 waiver of counsel invalid and his statements inadmissible.

When a defendant has moved to suppress his or her inculpatory statements, the state bears the burden of proving, by a preponderance of the evidence, that the defendant made those statements voluntarily. State v. Martin, 820 S.W.2d 605, 606 (Mo. App. 1991). In order to meet its burden, the state is not required to negate every possible circumstance which, if developed, could present a fact issue on the question of voluntariness. State v. Nolan, 423 S.W.2d 815, 818 (Mo. banc 1968). Rather, it is sufficient for the state to present a prima facie showing of voluntariness. Id. If a defendant contends that special circumstances exist which make the confession involuntary, the defendant is then required to present evidence to support that contention. Id.; State v. Vinson, 854 S.W.2d 615, 625 (Mo. App. 1993).

Our review of a trial court's denial of a motion to suppress is limited to whether the evidence is sufficient to support the trial court's order. State v. Dye, 946 S.W.2d 783, 786 (Mo. App. 1997). We consider the facts and all reasonable inferences in favor of the trial court's ruling. Id. We will not disturb the challenged ruling absent manifest error. Id.

At the hearing on the motion to suppress, the state adduced evidence from Officer Johnson that on October 6 defendant was given the option to appear and testify at an administrative disciplinary hearing, that he was read the Miranda rights prior to the hearing, that defendant acknowledged that he understood those rights and waived them in writing, and that defendant was then asked if he had a statement to make on his own behalf. Defendant made his statement, which Johnson wrote down, and defendant approved and signed it. Johnson had no first-hand knowledge that defendant had previously asked for an attorney and did not remember if he had read about this request in a report. The trial court overruled the motion.

At trial, after the state adduced similar evidence regarding the October 6 statement, defendant called Officer Rosenberg. Rosenberg was asked if he had the occasion to interview defendant on September 25, if defendant gave a statement, the content of the statement, and whether he continued to question defendant or had further contact with him.

The state argues that the evidence regarding the September 25 interview did not show that defendant made his request for counsel during a custodial interrogation and, therefore, his rights under Edwards did not attach. We agree.

In Miranda v. Arizona, the Court required that a custodial interrogation be preceded by an advice of rights, including advice of the right to counsel; if an accused requests counsel, "interrogation must cease until an attorney is present." 384 U.S. 436, 474, 86 S. Ct. 1602, 1627, 16 L.Ed.2d 694 (1966). Subsequently, the Court held that once an accused has so requested counsel the accused is not subject to further interrogation by authorities unless counsel has been made available, or unless the accused is the one who initiates further contact. Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1884-85. The...