State v. Flaaen, WD

• Decision Date: 19 October 1993
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Mark FLAAEN, Appellant. 46729.
• Court: Missouri Court of Appeals

Page 658

863 S.W.2d 658

STATE of Missouri, Respondent, v. Mark FLAAEN, Appellant.

No. WD 46729.

Missouri Court of Appeals,

Western District.

Oct. 19, 1993.

Jacqueline K. McGreevy, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., F. Martin Dajani, Asst. Atty. Gen., Jefferson City, for respondent.

Before SPINDEN, P.J., and FENNER and HANNA, JJ.

HANNA, Judge.

This is an appeal from convictions for burglary in the second degree, § 569.170, RSMo 1986, and stealing over $150, § 570.030, RSMo 1986, returned in the Circuit Court of Jackson County. The defendant was classified as a persistent and a Class X offender and was sentenced to two concurrent ten-year terms of imprisonment.

The facts viewed in the light most favorable to the verdicts are as follows. On December 17, 1990, Mr. David Wolf received a phone call from his wife who told him their son had returned home from school and found that someone had kicked open the front door and broken into their house. The police were called and conducted an investigation. An inventory of the property revealed a number of missing items from the house, including all of the Christmas presents that had been under the Christmas tree.

Later that day, James Simpson, a maintenance worker at the Hampton Court apartment complex, heard noise coming from the parking lot of the complex. When Mr. Simpson investigated, he saw the defendant and two other individuals taking items from the back seat of a car, putting some of them into the car's trunk and throwing others into a nearby dumpster. When the men drove away, Simpson wrote down the license number of the car. He then called the police. Upon arriving, the police retrieved the items from the dumpster and ran a check on the license plate number, which revealed that the car was registered to defendant.

At about 10:00 p.m., Independence Police Officer Robert Thornhill went to defendant's residence. The defendant got into his car and drove away. When Officer Thornhill stopped the vehicle, the defendant fled on foot. The defendant was apprehended, handcuffed, and taken to the police station.

That evening, Mr. Simpson went to the police station and viewed a photo lineup. He identified the defendant as one of the individuals in the parking lot of the apartment complex. Two days later, Mr. Wolf identified several items recovered from the trunk of defendant's car as being missing from his home.

At the police station, Detective Joel D. Passley read defendant his Miranda ¹ rights and defendant signed a Waiver of Rights. In defendant's statement he denied committing the burglary, but told the police that he drove the car for various Independence, Missouri burglaries and knew who was committing the burglaries. However, he refused to reveal the names of the offenders.

The defendant was next interviewed by Detective Storey. After telling the detective that he understood his rights and chose to waive them, he denied breaking into homes in Independence, but admitted driving the getaway car. Detective Doug Thompson was also present during this interview, but asked no questions.

Detective Gordon Abraham interviewed defendant the next morning. The defendant's parole officer, Guy Humphrey, was present during this interview. At some point during the interrogation, defendant requested an attorney and Detective Abraham immediately left the room. After a brief discussion, defendant told Humphrey that he would continue talking to the police. Detective Abraham returned and the questioning resumed. ²

A hearing was held on defendant's motion to suppress the statements he made to police after his arrest. The court overruled defendant's motion. On June 29, 1992, the cause came to trial and defendant was convicted by a jury. This appeal follows.

In his first point, the defendant charges the trial court with error in failing to sustain his motion to suppress the custodial statements he made to the police officers who interrogated him. He maintains he made at least four requests for an attorney which were not honored. During the questioning by Detectives Passley and Storey, the defendant made incriminating admissions about his participation in the burglary. Our review of a motion to suppress is limited to whether the trial court's decision is supported by substantial evidence. State v. Lytle, 715 S.W.2d 910, 915 (Mo. banc 1986).

The defendant argues that he had requested an attorney four different times and the officers continued to question him. Defendant's argument is founded factually on his testimony at the suppression hearing, and ignores other contrary evidence and the trial court's findings of fact. The trial court found that the defendant asked for an attorney on one occasion and the evidence supports that finding. The state offered into evidence two Miranda waiver forms signed by the defendant and the testimony of two police officers that the defendant was advised of his rights in accordance with the Miranda decision and that only on one occasion did he request an attorney. The request for an attorney made to Abraham is not relevant to our analysis since any statement made to him was not in evidence.

It is not the function of appellate courts to interfere with the trial court's determination of the weight of the evidence or its critical task of judging the credibility of the witnesses. State v. Boggs, 634 S.W.2d 447, 453 (Mo. banc 1982). The evidence supports the trial court's finding of fact that the defendant's one request to speak to an attorney was made after the incriminating statements had been given. In other words, the trial court did not believe defendant's testimony concerning his request for an attorney on the other three occasions.

In his second point, the defendant argues that the trial court improperly limited his opening statement when he attempted to inform court and jury of...