State v. Christian
| Decision Date | 19 August 1980 |
| Docket Number | No. 41083.,41083. |
| Citation | 604 S.W.2d 758 |
| Parties | STATE of Missouri, Respondent, v. Ricky CHRISTIAN, Appellant. |
| Court | Missouri Court of Appeals |
Wayne T. Schoeneberg, Hannegan, Knight, Kennedy, Schoeneberg & Weber, Inc., St. Charles, for appellant.
David K. Dowling, Montgomery City, Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant appeals a jury conviction of second degree burglary, with a sentence of two years imprisonment. The appeal contends, inter alia, that the confession in evidence was inadmissible as being obtained in contravention of defendant's Miranda rights.
At approximately 1:30 a. m., February 17, 1979, Orval Huhn, the owner of Orval's Tavern in Montgomery City, Missouri, locked the front door of his establishment and closed for the day. He then locked the walk-in beer cooler located behind the saloon. The cooler was held shut by a padlock device and the key kept inside the tavern. Only Mr. and Mrs. Huhn had keys to the tavern and neither had given permission to anyone to open the cooler.
On reopening the tavern in the morning, Mrs. Huhn noticed that the lock on the cooler door was bent and the apparatus holding the lock was broken. The door to the cooler equipped with a self-closing device was shut. As the Huhns did not keep an inventory they were unable to determine if any beer was missing.
On the afternoon of February 20, 1978, defendant, a seventeen year old youth was arrested at his place of employment and taken to the Montgomery County Jail. He testified that he requested to see an attorney. The prosecution did not offer evidence to refute this assertion. Defendant or his father called the office of Dan Deiter, a Montgomery City attorney to represent the defendant. David Dowling, an associate of Mr. Deiter, met with the defendant at about 3:30 p. m. After advising the defendant that he could not represent him because of a conflict of interest, Mr. Dowling told him not to make any statement without first consulting an attorney.
Mr. Dowling then informed the sheriff's office that he had told the defendant to make no statement and that by reason of the conflict the defendant would need another attorney.
Approximately four or five hours after his incarceration commenced, defendant was escorted to the sheriff's office for questioning. When the sheriff and defendant were alone in the interrogation room, the defendant was told that "cooperation is the best way to go," and that he (the sheriff) would communicate the defendant's cooperation to the prosecuting attorney. The defendant agreed to cooperate, and a deputy sheriff was summoned to transcribe his statement. It was then that the defendant was given his Miranda warnings. The defendant indicated that he wished to make a statement and signed a waiver card. During questioning by the sheriff and deputy he implicated himself in the burglary of the walk-in cooler.
Defendant's motion to suppress the statement as a violation of his fifth and sixth amendment rights was denied and his confession was admitted in evidence.
Defendant's first allegation is that the trial court erred by not striking a venireman for a cause. His contention is that the venireman possessed a hearing impairment which rendered him incompetent as a juror. The record reveals that interrogation into his hearing capabilities established that the venireman would be able to hear the trial proceedings. It is well settled that the trial court has vast discretion in ruling on a challenge of a venireman for cause and its decision should not be disturbed except for a clear abuse of discretion. State v. Treadway, 558 S.W.2d 646, 649 (Mo. banc 1977), cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978); State v. Cuckovich, 485 S.W.2d 16, 22 (Mo. banc 1972). This rule is based on the logical conclusion that the trial court is in a better position to determine the validity of a challenge for cause than an appellate court. State v. Treadway, 558 S.W.2d at 649. We find no abuse of trial court discretion in failing to strike the venireman for cause.
Defendant's second complaint is that the confession was obtained in contravention of his Miranda rights. The essence of defendant's argument is that because the defendant was improperly beguiled into waiving his Miranda rights, the waiver is invalid, the interrogation is improper and the subsequent incriminating statement is inadmissible.
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Id., at 444, 86 S.Ct., at 1612. The safeguards include that the defendant "be warned prior to any questioning, that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Id., at 479, 86 S.Ct., at 1630.
In order to admit a confession the prosecution must show that the "defendant was effectively advised of his rights and he then intelligently and understandingly declined to exercise them." State v. Hughes, 596 S.W.2d 723, 726 (Mo. banc 1980) quoting State v. Alewine, 474 S.W.2d 848, 851 (Mo. 1972). The state has the burden of proving by a preponderance of the evidence that defendant declined to invoke his right to speak with an attorney and voluntarily consented to questioning. State v. Hughes, 596 S.W.2d at 726; State v. Olds, 569 S.W.2d 745, 751 (Mo. banc 1978). Voluntariness of a confession, "can be determined only by considering all the relevant circumstances surrounding it." State v. Hughes, 596 S.W.2d at 726 quoting Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970).
The determination of voluntariness is made in the first instance by the trial court. It must determine the credibility of witnesses and where evidence is in conflict make factual findings. On appeal, the question is whether the evidence was sufficient to support the trial court's findings. State v. Hughes, 596 S.W.2d at 727.
The state's evidence does not clearly demonstrate that defendant declined his rights, particularly the right to counsel. The sheriff's testimony concerning this point is vague at best. The transcript reveals the following colloquy between defendant's attorney concerning defendant's request for counsel:
We conclude that the record fails to establish that defendant waived his right to counsel. The state however, contends even if the defendant requested counsel he made a subsequent intentional relinquishment of that right and indicated he wanted to make a statement. We disagree.
Because "`courts indulge every reasonable presumption against waiver' of fundamental constitutional rights", Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), a heavy burden rests upon the prosecution to demonstrate a valid waiver of Miranda rights. "Any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege." Miranda v. Arizona, 384 U.S. at 476, 86 S.Ct. at 1629. "A confession in order to be admissible must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." State v. Hughes, 596 S.W.2d at 726 quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897).
The Miranda opinion does not create a per se proscription of indefinite duration upon any further questioning by any police officer. However before questioning can commence, the defendant must be advised of his rights and voluntarily decline to exercise them. Michigan...
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