State v. Frazier, WD

• Decision Date: 04 June 1996
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Henry FRAZIER, Appellant. 50321.
• Court: Missouri Court of Appeals

Page 378

927 S.W.2d 378

STATE of Missouri, Respondent, v. Henry FRAZIER, Appellant.

No. WD 50321.

Missouri Court of Appeals,

Western District.

June 4, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 30, 1996.

Application to Transfer Denied

Sept. 17, 1996.

Rosemary E. Percival, Asst. Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

Before FENNER, C.J., P.J., and HANNA and ELLIS, JJ.

FENNER, Chief Judge.

Appellant, Henry Frazier, appeals his conviction for the class C felony of tampering in the first degree.

Appellant was observed by Officer Brian Francis of the Kansas City Police Department operating a stolen Chevy truck. Appellant was arrested and taken into custody. After appellant was arrested, he was questioned by Detective Dennis Gargotto of the Kansas City Police Department. Appellant waived his Miranda rights and told Detective Gargotto that he had rented the truck from someone named John in exchange for property worth $20. Appellant admitted that he was aware that the truck had a broken steering column and a broken window. Appellant told Detective Gargotto that lots of vehicles were like that and the questioning stopped when appellant asked for an attorney.

On appeal, Frazier argues that the trial court plainly erred in failing to declare a mistrial, sua sponte, based on Detective Gargotto's testimony that Frazier asserted his right to remain silent after being asked to explain incriminating evidence.

A defendant is entitled to relief under the "plain error" rule only when the alleged error so substantially affects the rights of the accused that a manifest injustice or a miscarriage of justice would inexorably result if left uncorrected. State v. Tate, 850 S.W.2d 385, 388 (Mo.App.1993). The "plain error" rule should be used sparingly and is limited to those cases where there is a strong, clear demonstration of manifest injustice or a miscarriage of justice. State v. Collis, 849 S.W.2d 660, 663 (Mo.App.1993). The question of whether to consider a matter as plain error is discretionary with an appellate court. Rule 30.20; State v. Collis, 849 S.W.2d at 663. We consider appellant's allegation of plain error ex gratia.

It is well established that a defendant's post-arrest silence or language representing silence cannot be used as evidence to incriminate him. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). However, once the defendant waives his right to remain silent, all speech or non-silence, by a defendant may be admitted into evidence and remarked on. State v. Tims, 865 S.W.2d 881, 885 (Mo.App.1993). The defendant can revoke the waiver of his right to remain silent at any time, at which point his silence is again protected. Id. at 885.

Once the defendant revokes the waiver of his right to remain silent, the state can show the circumstances under which an interrogation was terminated. State v. Hollis, 584 S.W.2d 137, 145 (Mo.App.1979). Nonetheless, any evidence describing the conclusion of an interrogation must be carefully scrutinized. Tims, 865 S.W.2d at 886. Evidence in regard to the conclusion of an interrogation which reveals that the defendant was failing to answer a direct charge of guilt is improper. Id. Likewise, evidence which reflects that the defendant "clammed up" under circumstances calling imperatively for an admission or denial should not be admitted. Id. However, to the extent that no inference of guilt can reasonably be drawn from evidence describing the conclusion of an interrogation, it is admissible. Id.

In Tims, the court further held that evidence that an interrogation was terminated when the defendant requested an attorney is improper because it may be perceived as a remark which would be made by a guilty party. Id., (citing State v. Martin, 797 S.W.2d 758 (Mo.App.1990)). Although the court found this testimony to be improper, it did not find it prejudicial considering the overwhelming evidence supporting the defendant's conviction. Id.

We believe that evidence that an interrogation was terminated when a defendant requested an attorney is only improper when the circumstances are such that an inference of guilt can be drawn from the testimony. Such as when the testimony reflects that the defendant requested an attorney in direct response to a charge of guilt or under circumstances calling imperatively for an admission or denial. To the extent that Tims can be argued to hold otherwise, we disagree.

In Tims, the court relied upon State v. Martin, 797 S.W.2d 758 (Mo.App.1990), for its holding that it is improper to allow testimony that an interrogation ceased when the defendant requested an attorney. In Martin, the testimony offered in this regard was much more extensive and direct than in the case at bar. In Martin, the officer who interrogated the defendant testified as follows:

PROSECUTOR: Okay. After this statement had been made to you, did you take any further steps to try to make a report of it in any way?

OFFICER: Yes, sir, I did.

DEFENSE COUNSEL: Object, your Honor....

THE COURT: ... I will overrule the objection.

* * *

PROSECUTOR: Did you make any other request to try to make a visual record of what happened?

OFFICER: Yes, sir, I did.

PROSECUTOR: And what was that?

OFFICER: I asked him if he would be willing to give us a statement on videotape.

PROSECUTOR: When you asked him that, what happened?

OFFICER: He said that he thought he should talk to an attorney first.

PROSECUTOR: Is that the first mention that he had made of wanting to talk to an attorney?

OFFICER: Yes, sir, it is.

PROSECUTOR: And when he asked to talk to an attorney, did you in fact make arrangements for him to do so?

OFFICER: I did.

PROSECUTOR: After that was completed, did you renew your request?

OFFICER: No, sir. After he had talked to an attorney, he indicated he did not wish to make any further statement.

Martin, 797 S.W.2d at 764.

In Martin, the testimony in regard to the defendant's request to speak to an attorney came after a detailed account of appellant's confession where the prosecutor continued to question the interrogating officer regarding the defendant's subsequent request to speak to an attorney and the defendant's refusal to answer questions after he had exercised his right to counsel. Id. at 763-64. Unlike the case at bar, Martin presented circumstances such that an inference of guilt could be drawn from the evidence presented in regard to appellant's request for counsel.

In the case at bar, the record reflects the following testimony in regard to appellant's statement to Detective Gargotto:

PROSECUTOR: Can you tell the ladies and gentlemen of the jury what this defendant told you with respect to the operation of the Chevy pickup that he was driving?

DETECTIVE GARGOTTO: Yes, sir. Mr. Frazier admitted driving the vehicle. He stated that he had rented the truck from a man he knew only as John. And that he traded something that he valued at $20 for the vehicle. He also told me that he saw the broken window and broken steering column on the truck.

PROSECUTOR: Was the defendant able to offer any explanation for the damage to this pickup?

DETECTIVE GARGOTTO: No, sir.

PROSECUTOR: What if anything did he say in response to that?

DETECTIVE GARGOTTO: He didn't say anything. Shortly into the interview, I believe seven minutes into the interview, he asked for an attorney, at which time the interview ceased.

PROSECUTOR: Did he tell you anything about other cars?

DEFENSE COUNSEL: Your Honor, I'm going to object.

(Counsel approached the bench and the following proceedings were had:)

DEFENSE COUNSEL: I'm not sure what he is getting at. It's rather vague. It might lead him into the rest of that paragraph.

THE COURT: What other car?

PROSECUTOR: This statement the defendant said, lots of other cars are like that in response to questions about damages to the vehicle. It wasn't in reference to anything other than the fact.

DEFENSE COUNSEL: Rephrasing the question might solve the problem, but I'm afraid by asking him what he said about other cars that that may get into the rest of that report.

PROSECUTOR: I'm not getting into anything.

THE COURT: Actually, it's exculpatory.

DEFENSE COUNSEL: I don't want the officer to make a mistake about what he says.

THE COURT: Overruled.

(The proceedings returned to open court.)

PROSECUTOR: Do you have a copy of police department Form 107 that you executed in this case?

DETECTIVE GARGOTTO: In regards to my interview with Mr. Frazier, yes, sir.

PROSECUTOR: I would ask that you silently read that.

DETECTIVE GARGOTTO: Yes, sir.

PROSECUTOR: Okay. Now, before the interview was--I'll ask this. Is your memory refreshed now?

DETECTIVE GARGOTTO: Yes, sir.

PROSECUTOR: Okay. Before the interview was ended, did you ask the defendant about the damage to this particular vehicle?

DETECTIVE GARGOTTO: Only about the window and the steering column, yes.

PROSECUTOR: What was his response when you asked him about this damage?

DETECTIVE GARGOTTO: That he saw the broken wing and the broken steering column.

PROSECUTOR: Did he have anything else to say about that?

DETECTIVE GARGOTTO: He said that lots of cars are like that.

To this point, Detective Gargotto's testimony taken as a whole does not reflect that appellant refused to answer a direct charge of guilt or became silent under circumstances calling imperatively for an admission or denial. It was not error, plain or otherwise, for the state to show that appellant's interrogation ceased at his request. Taken as a whole, Detective Gargotto's testimony reflects that when appellant was asked about the damage to the vehicle, appellant responded that "lots of cars are like that." Subsequent thereto, but shortly into the interrogation, appellant asked for an attorney and the interrogation ceased. Appellant's request for an attorney was not related to any question, direct or otherwise, as...