State v. Brydon, WD

• Decision Date: 22 December 1981
• Docket Number: No. WD,WD
• Citation: 626 S.W.2d 443
• Parties: STATE of Missouri, Respondent, v. Earl BRYDON, Appellant. 31959.
• Court: Missouri Court of Appeals

Page 443

626 S.W.2d 443

STATE of Missouri, Respondent, v. Earl BRYDON, Appellant.

No. WD 31959.

Missouri Court of Appeals, Western District.

Dec. 22, 1981.

Cullen Cline, Butcher, Cline & Mallory, Columbia, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P. J., and SHANGLER and WASSERSTROM, JJ.

The defendant was convicted of the deviate sexual assault in the first degree (§ 566.070, RSMo 1978) practiced upon a foster-daughter and was sentenced to a two-year term of imprisonment. The prosecution resulted from an incident of child abuse reported under the procedures of Child Protection, Chapter 210 of the statutes. The defendant contends, among other errors, that the evidence for conviction were statements given in confidence protected by law from disclosure and otherwise involuntary.

The defendant Brydon and wife were the foster parents of the female child N then fifteen years of age. The child and a brother were in the custody of the Brydons as foster parents for some three years. On April 23, 1979, witness Munson, a private practitioner of psychology and family therapy-then a counselor with the Family Service (a private enterprise) in Columbia, Missouri-received an anonymous telephone call. The caller intimated that a sexual contact occurred between her husband and a fifteen-year-old "daughter" and sought her professional counsel. The witness Munson explained that she was under the obligation of the law to report any incident of sexual abuse to the Division of Family Services. The caller expressed concern about that condition and discontinued conversation. The caller telephoned again that day to identify herself as Lovedy Brydon (wife of the defendant). On that subsequent occasion, witness Munson told her that "we would probably have to report" (the incident). Ms. Brydon made an appointment with the counselor-therapist for the following Thursday, April 26th. (The Munson testimony mentioned another telephone conversation with Ms. Brydon on April 24th, but the contents are not mentioned.)

On that Thursday, the Brydons were present with foster daughter N at the office of counselor Munson. The witness Munson narrated that event: There was no verbal exchange among them until after counselor Munson advised them that she "would have to report this to the Division of Family Services." The defendant said nothing to that, but remained. Ms. Munson then initiated conversation by inquiry to the family whether they were aware of the telephone calls to her. The wife of the defendant responded that she had told the family she had called counselor Munson after information from N on Monday (April 23) morning that "sexual contacts had begun again." To that the defendant made response that "he felt badly about the situation. He was concerned about N and felt that he needed counseling." That same day, Ms. Munson made verbal report of the incident to the Division of Family Services and then in short time submitted the formal written report-each as required by statute (§ 210.115 and § 210.130). That same day, also, social worker Keen of the Division met with the defendant and wife at the residence-and that same day N and the brother were removed to another foster home.

The defendant Brydon remained under the ministrations of counselor Munson as a private patient. The therapy extended over seventeen sessions but treated only the anxiety and depression engendered from the marital dislocation. There was no counsel on the "sexual problem" because the defendant, by then advised by an attorney, refused the subject.

The telephone report to the Division of Family Services by counselor Munson prompted an urgent inquiry by Anne Keen, a child protective service worker of the Division. She reached the defendant at home by telephone that very day (April 26), identified her interest, and arranged to meet with the husband and wife at the residence that evening. The testimony of worker Keen was that she initiated the encounter by a personal introduction and that she was there to discuss a report of sexual abuse made to Ms. Munson and then reported to worker Keen. Ms. Keen then asked them for the "underlying reasons as to why this ... situation has occurred." The Brydons asked that she clarify the inquiry. To that, Ms. Keen put the question: "if they would like to share any problems that they had been having in their marital situation." The defendant Brydon (by her report) by a speech "very slow, deliberate and intent" replied that "he could not blame what had happened on his marriage, but instead he felt like he had to take full responsibility for what had happened." Ms Keen explained to the Brydons further that it was important to an effective work with N as a foster child "to understand the extent of the sexual involvement from them instead of initially from N. So, I had asked them basically to help explain that to me." The defendant continued to find an explanation difficult, so Ms. Keen suggested a description of the sexual event in terms of degree: "I asked them to describe it to me in a manner of degree(s) being mild, moderate, or serious sexual involvement."

Q. What did each of those categories mean?

A. I then gave a definition and I said mild would entail kissing or fondling, moderate would be finger play, and serious would mean intercourse.

Q. Did Mr. Brydon reply?

A. Yes, he did. He said the word serious.

Q. What did you do at that point?

A. The next thing I discussed with them was their legal position in the sense I told them there might be felony charges filed against them and possibly a lawsuit from the parents of N., just to inform them of the possibilities of that situation.

Q. Mr. Brydon respond to that?

A. Yes, he did. He had asked what that involved in terms of a court situation and asked if it would be necessary for the children to testify. I said based on my experience, yes, the children do have to testify in sexual abuse cases. He then remarked he never wanted N to have to testify and would plead guilty so she would not have to go through another traumatic situation. He also said he would-he again confirmed his feelings of taking full responsibility for this situation and made the statement he would need to take the consequences of his actions.

The children, N and brother, were removed from the Brydon home that evening. Two days later (April 28) the defendant Brydon telephoned Ms. Keen to express concern as to whether he needed an attorney-earlier conversation with Ms. Munson left the impression that prosecution was unlikely and so such a recourse unnecessary.

Q. What did you say to Mr. Brydon?

A. I told him that he needed to secure an attorney.

Q. And what did he reply?

A. He said he would plan on securing an attorney and that he did not want N to have to testify in Court. He again told me he would plead guilty.

The child N related that on that April night the defendant (foster father) Brydon came into her bedroom. N was in bed. The defendant asked where Lovedy (his wife) was. N answered that Lovedy was at a meeting. The defendant said: "Good," left and then returned unclad. He slipped into the bed and commenced to fondle her body-in the words of the witness: "(m)y breast and my lower part." The defendant touched her genitals, lay upon her, kissed her face. She resisted, told him to "get out of here," that she was going to tell Lovedy, but he persisted, performed the cunnilingus perversion and then the normal act of frontal sexual intercourse. The defendant finally left. The next morning she reported the event to foster mother Lovedy. The telephone call to Ms. Munson and the inquiry by the Division worker Keen ensued.

The defendant Brydon gave testimony. His narrative was brief: he admitted that on the night of Sunday, April 22, while wife Brydon was away from the home, he made advances to N. He entered into her bed, put his arms around her, and attempted to disrobe her pajamas. She resisted, so he left. He denied any other intimacy, tactile or overtly sexual. ¹

In limine, the defendant moved to suppress the admissions to counselor Munson and social worker Keen on grounds that they were rendered involuntary by (unspecified) promises and statements guised as an offer for counsel, but with actual purpose to gather evidence for a prosecution. The trial of that motion does not appear in the transcript but we surmise from other entries that the question was presented to the court on memoranda and, on due consideration, denied. The defendant attributes three errors to that action: (1) that the court made no formal finding that the statements were voluntary, (2) that under the evidence the statements were induced by false statements and promises and so involuntary as a matter of law, (3) that the admission of the statements into evidence compelled the defendant to give testimony he would have withheld otherwise and so violated that prerogative under the Fifth Amendment.

The first contention-that the trial court "failed to rule" with unmistakable clarity on the voluntariness of the confessions-(so we understand) impugns the adjudication for want of express grounds for decision. The record of that proceeding and order are not before us so we are unable to assess the complaint. On principle, nevertheless, the finding of a voluntary confession suffices if the validity of that adjudication "appear from the record with unmistakable clarity." Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967). The trial court need enter neither formal findings of fact nor an opinion to sustain decision. State v. Garrett, 595 S.W.2d 422, 429(6, 7) (Mo.App.1980). Thus, the appeal posits the essential inquiry: whether the determination that the confessions by defendant Brydon were voluntary appears clearly from the record to rest on a preponderant proof. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1...