State v. Frentzel, WD

• Decision Date: 07 April 1987
• Docket Number: No. WD,WD
• Citation: 730 S.W.2d 554
• Parties: STATE of Missouri, Respondent, v. John FRENTZEL, Appellant. 38325.
• Court: Missouri Court of Appeals

Page 554

730 S.W.2d 554

STATE of Missouri, Respondent, v. John FRENTZEL, Appellant.

No. WD 38325.

Missouri Court of Appeals Western District.

April 7, 1987.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 2, 1987.

Dennis D. Gooden, Public Defender, Columbia, for appellant.

William L. Webster, Atty. Gen., Jatha B. Sadowski, Asst. Atty. Gen., Jefferson City, for respondent.

Before CLARK, C.J., and TURNAGE and NUGENT, JJ.

NUGENT, Judge.

John Frentzel appeals his conviction by a jury of burglary in the second degree. He claims that the trial court should have suppressed a confession he made after he had refused to waive his constitutional rights because the interrogating officers did not scrupulously honor his right to cut off questioning. Second, he argues that his confession--the only evidence linking him to the crime--was not admissible absent separate, independent proof of the corpus delicti.

For the following reasons, we affirm the judgment of the trial court.

On July 2, 1985, a correctional officer at the Algoa Correctional Center discovered a hole in the ceiling of the meeting room in the chapel building. He also noticed scuff marks on the wall and footprints on the chairs. Upon removing a blanket that had been draped over a podium in the meeting room, the prison investigators found loot valued at about $688, including stereo cassette players, fans, cigarettes, and candy bars, all taken from the adjacent inmate canteen, a separate room in the chapel complex. When the business manager unlocked the canteen door, the investigators saw a hole in that ceiling and a shelf unit that had been overturned.

Later that day, another correctional officer who was not officially a part of the investigative team noticed that the defendant had fresh scratch marks on his back and arms and questioned him about the break-in. The record does not disclose what was said at that time. However, pictures of the scratch marks were admitted at trial, and the record hints that the defendant may have acquired the scratch marks earlier while playing baseball without wearing a shirt.

About two weeks later, on July 15, three investigators questioned Mr. Frentzel in the prison investigator's office. One of the investigators, Mr. Clark, read the defendant Frentzel his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), from the standard form used at Algoa at the time. After each right was read, Mr. Clark stopped and asked Mr. Frentzel whether he understood that right. If so, he was to place his initials in the left column of the form. The defendant initialed all the rights listed on the form and also initialed the final question, "Do you understand each of these rights?" Then he signed and dated the form but refused to sign the attached Miranda waiver form.

When Mr. Frentzel refused to sign the waiver of rights, the investigators informed him that they could not talk to him and that he was free to go. At that point, he asked the investigators if he could stay and talk with them concerning another topic. He proceeded to assure the officers that two other inmates under investigation had nothing to do with the break-in. One of the investigators remarked that the ceiling of the meeting room was so high that it did not seem possible for one man climbing on stacked chairs to have reached it without help from a second person. Mr. Frentzel then said, "I did set a bench up and crawled up the church pew into the hole." When asked if he realized what he had just said, he said, "Oops." Then he said, "I might as well go ahead and tell you about it." He explained how he had crawled up a church pew into the attic of the chapel and had gone through a hole in the attic to the canteen. He told the investigators that a shelf inside the canteen had collapsed and that he carried some of the inventory into the attic and then to the chapel.

On July 31, 1985, the adjustment board held a hearing in order to determine whether to prosecute Mr. Frentzel. They again advised him of his rights and again he acknowledged his understanding of those rights by initialing the form. This time, he also signed the waiver of rights. Again he admitted taking the items from the canteen. The adjustment board recommended prosecution.

I.

Defendant Frentzel contends that his July 15 confession was obtained in violation of his constitutional rights and, therefore, was not admissible at trial. He claims that immediately after he had invoked his right to remain silent about the burglary the investigators turned the conversation back to the canteen break-in in an attempt to elicit an incriminating response.

The defendant relies upon Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975), which states that the test of admissibility of incriminating statements obtained after a person in custody has decided initially to remain silent is whether his right to cut off questioning was scrupulously honored.

In the present case, the officers informed the defendant that because he had refused to waive his rights they would not question him and he was free to go. They undertook no interrogation at that point. The defendant then asked if he could talk to the investigators about "something else." He initiated the ensuing discussion in an attempt to exonerate two fellow inmates. The record contains no evidence that the investigators in any way attempted to persuade or coerce the defendant to continue or to reopen the encounter with the investigators.

This is not a case in which defendant's interrogators failed to honor his decision to remain silent. The investigators scrupulously honored his wish not to be questioned.

Defendant having by his own choice extended the confrontation with the prison investigators, the question then becomes whether any statement he made in that context was voluntarily made and, therefore, admissible in evidence against him. "[A] defendant who refuses to sign a written waiver may nonetheless voluntarily waive the exercise of his Miranda rights by orally indicating his willingness to cooperate with police questioning." State v. Groves, 646 S.W.2d 82, 85 (Mo.1983) (en banc). See also State v. Outley, 693 S.W.2d 184, 186 (Mo.App.1985). The test of voluntariness is whether under the totality of the circumstances the defendant was deprived of a free choice to admit, to deny or to refuse to answer and whether physical or psychological coercion was of such a degree that defendant's will was overborne at the time he confessed. State v. Lytle, 715 S.W.2d 910, 915 (Mo.1986) (en banc); State v. Higgins, 592 S.W.2d 151, 158 (Mo.1979) (en banc), appeal dismissed, 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980).

In the present case, the defendant was advised of his Miranda rights, signed a form indicating that he understood those rights and then declined to sign the waiver form. The investigators immediately excused him, but he himself by his request to discuss "something else" extended the encounter. He did not discuss "something else." Instead, he attempted to exonerate his fellow inmates of any part in the burglary. Nothing in the record indicates that defendant was tricked, cajoled, or physically or psychologically coerced into making any statement. Once he admitted that he had used a church pew to climb up to the ceiling, he realized that he had incriminated himself and then decided without prompting to confess the remaining details of the burglary.

With regard to a second interrogation, the Miranda warnings need not be given each time the accused is questioned. Miller v. United States, 396 F.2d 492 (8th Cir.1968), cert. denied, 393 U.S. 1031, 89 S.Ct. 643, 21 L.Ed.2d 574 (1969); State v....