State v. Bucklew

• Decision Date: 26 May 1998
• Docket Number: No. 80052,80052
• Citation: 973 S.W.2d 83
• Parties: STATE of Missouri, Respondent, v. Russell E. BUCKLEW, Appellant.
• Court: Missouri Supreme Court

Page 83

973 S.W.2d 83

STATE of Missouri, Respondent, v. Russell E. BUCKLEW, Appellant.

No. 80052.

Supreme Court of Missouri En Banc.

May 26, 1998.

Rehearing Denied Aug. 25, 1998.

Frederick A. Duchardt, Jr., Kearney, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERTSON, Judge.

A jury convicted Russell E. Bucklew of first degree murder, section 565.020, RSMo 1994; kidnapping, section 565.110, RSMo 1994; first degree burglary, section 569.160, RSMo 1994; found two aggravating circumstances, and recommended the death sentence. The trial court sentenced Bucklew to death. Bucklew appeals. We have jurisdiction. MO. CONST. ART. V, SEC. 3. The judgment is affirmed.

I.

We take the facts in the light most favorable to the verdict.

Russell Bucklew apparently did not want to live apart from Stephanie Ray. The two had lived together in Cape Girardeau County until Ray decided to break up with Bucklew on Valentine's Day, 1996. Bucklew left their mobile home and went to live with his parents.

On March 6, Bucklew returned to the trailer he had shared with Ray, found Michael Sanders, the victim in this case, there, concluded that Sanders and Ray were romantically involved, put a knife to Sanders's throat, and threatened to kill Sanders if Sanders even came back to Ray's trailer. Later that same evening, Bucklew returned to the trailer, found Ray alone, threatened her with a knife, cut her jaw, and punched her in the face before leaving. Ray reported all this to the police.

Bucklew called Ray at work the following day, March 7. He threatened her again and promised to kill her, Sanders, and her children if he saw her with Sanders again.

Ray moved in with Sanders, fearing to return to her own home.

Sometime during the night of March 20-21, Bucklew stole his nephew's car, two of his brother's pistols, two sets of his brother's handcuffs, and a roll of duct tape. He left a note asking his family not to report his theft to the police. By the afternoon of March 21, Bucklew began surreptitiously following Ray as she left work and ran errands, ultimately discovering where she lived by following her to Sanders's trailer. Bucklew waited for some period of time before he knocked on Sanders's trailer door. One of Sanders's children opened the door. Sanders saw Bucklew through a window, escorted the children to a back bedroom and grabbed a shotgun. Bucklew entered the trailer with a pistol in each hand. Sanders came into the hallway carrying the shotgun. Appellant yelled "get down" and without further warning began shooting at Sanders. Sanders fell, struck by two bullets, one of which entered his chest and tore through his lung. Sanders dropped the shotgun. It went off and blew a hole in the trailer wall.

Bucklew aimed the gun at Sanders's head, but when he saw Sanders's six-year-old son, Bucklew fired at the boy instead. The shot missed.

Ray stepped between Bucklew and Sanders, who was holding his chest as he slumped against the wall. Bucklew invited Ray to drop to her knees. When she delayed, he struck her face with a pistol. He produced handcuffs, handcuffed her hands behind her back and dragged her to the car. The two drove away.

During the journey that followed, Bucklew demanded sex. When all of the acts he demanded were not performed, Bucklew raped Ray in the back seat of the car. Resuming the journey, Bucklew drove north on Interstate 55.

By this time law enforcement authorities had broadcast a description of the Bucklew car. Trooper James Hedrich saw the car Michael Sanders bled to death from his wounds.

called for assistance, and began following Bucklew. We need not prolong the account beyond reporting that the highway patrol ultimately apprehended Bucklew following a gunfight in which both a trooper and Bucklew were wounded by gunshot.

Additional facts necessary to consider Bucklew's appeal follow as we consider his legal arguments against his conviction and sentence.

II. Statement to Police

Bucklew claims that the trial court erred in overruling his motion to suppress a statement he made to police and in receiving the statement into evidence at trial. He challenges the statement on two grounds. First, he claims that the statement was the product of a coercive interrogation in which officers failed to "scrupulously honor" his invocation of his right to remain silent. Second, he claims that the statement was not voluntarily, knowingly and intelligently made.

Once the admissibility of a statement has been challenged, the State bears the burden of demonstrating by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently made the statement.

On March 22, shortly after the Missouri highway patrol wounded Bucklew in the gunfight he precipitated, and while he remained in the hospital receiving treatment, Al Riehl of the Missouri highway patrol, approached Bucklew, read him his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and asked if Bucklew wished to give a statement about the events of March 21. Bucklew told Riehl that he did not wish to make any comment. Riehl immediately ceased questioning and left the hospital.

March 26, after five days of treatment, the hospital released Bucklew. The Cape Girardeau County sheriff transported him to the sheriff's office. When Bucklew arrived, Riehl approached Bucklew again, read him his Miranda warnings and asked him if he would like to give a statement. Bucklew responded, "yes, but it would take a long time."

After executing a standardized written "Notification and Waiver of Rights" form, Bucklew gave a lengthy videotaped statement about the events of March 21, 1996. The videotape contains many statements inculpating Bucklew. Bucklew subsequently moved to suppress the videotape. The trial court overruled Bucklew's motion to suppress.

Court finds that with reference to video statement of Defendant that Defendant was advised of his rights pursuant to Miranda v. Arizona and that Defendant understood said rights and that the statement in question was freely and voluntarily made without threat or cosercion [sic]. (L.F. p. 225).

Bucklew assigns error to the trial court's failure to suppress the videotaped statement and in allowing the statement into evidence at trial. His first attack is based on his belief that the police did not "scrupulously honor" his original invocation of his right to remain silent.

A.

Under Miranda v. Arizona, 384 U.S. 436, 437-474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the rights of persons in custody are clear:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

However, under Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975):

[N]either [the above] 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.

Here, Riehl read Bucklew his rights at the hospital, and asked if he wanted to make a statement, on March 22. Bucklew did not. At that point, applying Miranda and Mosley, Bucklew expressed his present intent to exercise his Fifth Amendment privilege. Riehl immediately cut off questioning. Bucklew never indicated that he wished to be represented by counsel. On March 26, Riehl asked Bucklew again if he wanted to give a statement. Bucklew argues that this question violates his Fifth Amendment rights.

Once a suspect invokes Fifth Amendment privileges interrogation must cease and the right to remain silent must be scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Of course this prohibition applies only to "interrogation." ¹ Rhode Island v. Innis, 446 U.S. 291, 301-302, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). It does not apply to administrative questioning or to questions that the police have no reason to believe will elicit an incriminating response. Innis at 301-302, 100 S.Ct. 1682. Whether a defendant's Fifth Amendment rights have been scrupulously honored is fact specific. Jacobs v. Singletary, 952 F.2d 1282, 1293 (11 th Cir.1992); Jackson v. Dugger, 837 F.2d 1469, 1472 (11 th Cir.), cert. denied, 486 U.S. 1026, 108 S.Ct. 2005, 100 L.Ed.2d 236 (1988).

Many courts have faced situations that closely parallel the facts preceding Bucklew's statement in this case. See, e.g., Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); West v. Johnson, 92 F.3d 1385 (5 th Cir.1996); Jacobs v. Singletary, 952 F.2d 1282 (11 th Cir.1992); Nelson v. Fulcomer, 911 F.2d 928 (3 rd Cir.1990); and Jackson v. Wyrick, 730 F.2d 1177 (8 th Cir.1984). The consensus of these cases is that, after a suspect initially invokes the right to remain silent, the police are not indefinitely precluded from asking whether the suspect has changed her mind and wants to talk. Factors courts weigh to determine whether the right to remain silent has been scrupulously honored include: (1) whether the police immediately ceased the interrogation upon defendant's request; (2) whether they resumed questioning only after the passage of a significant period of time and provided fresh Miranda warnings; (3) whether the object of subsequent interrogation was to wear down the...