State v. Frazier, WD
Decision Date | 04 June 1996 |
Docket Number | No. WD,WD |
Citation | 927 S.W.2d 378 |
Parties | STATE of Missouri, Respondent, v. Henry FRAZIER, Appellant. 50321. |
Court | Missouri Court of Appeals |
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.
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:
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:
(The proceedings returned to open court.)
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...
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