State v. Gaw

Citation285 S.W.3d 318
Decision Date26 May 2009
Docket NumberNo. SC 89820.,SC 89820.
PartiesSTATE of Missouri, Respondent, v. Terrell C. GAW, Appellant.
CourtUnited States State Supreme Court of Missouri

Emmett D. Queener, Office of Public Defender, Columbia, MO, for Appellant.

Chris Koster, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for Respondent.


Terrell C. Gaw was found guilty, following trial by the circuit court without a jury, of felony driving while intoxicated. Section 577.010.1.1 Gaw was charged as, found to be, and sentenced as a chronic offender. The issue presented in this appeal is whether the trial court improperly admitted statements made by Gaw in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), and Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).

This Court adopts the approach set out in Justice Kennedy's concurring opinion in Seibert because it supplies the position taken by the most members of the United States Supreme Court who concurred in the judgment on the narrowest grounds. After applying that analysis to the facts in this case, the judgment is affirmed.


In reviewing a trial court's ruling on a motion to suppress, there must be "substantial evidence" to support the ruling. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). "[T]he facts and reasonable inferences from such facts are considered favorably to the trial court's ruling and contrary evidence and inferences are disregarded." State v. Galazin, 58 S.W.3d 500, 507 (Mo. banc 2001) (citing State v. Kinkead, 983 S.W.2d 518, 519 (Mo. banc 1998)).

In "reviewing the trial court's overruling of a motion to suppress, this Court considers the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court's ruling." State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005). "Deference is given to the trial court's superior opportunity to determine the credibility of witnesses." Rousan, 961 S.W.2d at 845. This Court gives deference to the trial court's factual findings but reviews questions of law de novo. Id.


Missouri Highway Patrol Sgt. Michael Frazier was dispatched to a one-vehicle accident on Route K west of Racine, Missouri. He observed fluids on the ground. Firefighters and other first responders were at the scene when he arrived.

Sgt. Frazier saw Gaw rummaging through the pickup truck involved in the accident. Sgt. Frazier approached Gaw and asked him if he owned the pickup. Gaw said it was his truck. Gaw's eyes were glassy and bloodshot. He swayed when he walked and used vehicles to steady himself. Sgt. Frazier smelled intoxicants and the odor of burned marijuana on Gaw. Sgt. Frazier believed Gaw was intoxicated.

Sgt. Frazier asked Gaw to give him his marijuana. Gaw reached into his pants pocket, pulled out a small baggie and handed it to the officer. Sgt. Frazier believed the baggie contained marijuana. Sgt. Frazier patted Gaw down, and he found a small pipe used to smoke marijuana in Gaw's other pocket. He arrested Gaw for possession of marijuana. Gaw consented to take a portable breath test. The test results showed a high concentration of alcohol.

After administering the portable breath test, the officer asked Gaw who was driving the truck. Gaw answered that it was either his girlfriend or a friend of hers. Sgt. Frazier told the trial court that Gaw later stated that he was the driver. Sgt. Frazier was the only witness at trial.

Gaw asserts two points on appeal. He first contends the trial court erred in admitting his statements to Sgt. Frazier prior to being warned of his Miranda rights and also the statements made after the Miranda warnings. He argues the post-Miranda statements should be excluded because the officer's improper tactics rendered the warnings ineffective. He contends a reasonable person in his position could not have understood them to convey a message that he retained a choice about continuing to talk to Sgt. Frazier.

In its review, this Court considers the testimony of Sgt. Frazier presented at both the suppression hearing and at trial for purposes of considering whether the trial court properly overruled the motion to suppress and admitting the evidence. Pike, 162 S.W.3d at 472.

Sgt. Frazier's testimony was that Gaw was placed under arrest when Sgt. Frazier confronted him about having marijuana and Gaw produced a baggie of marijuana. At that point, Sgt. Frazier handcuffed Gaw. Prior to that time, when Sgt. Frazier had inquired about the accident, Gaw told the officer he had not been driving the vehicle, but that his girlfriend, or a friend of hers, was driving. After Gaw's arrest, Sgt. Frazier again brought up the subject of the accident. During the course of Sgt. Frazier's post-arrest questioning, Gaw admitted that he was the driver. Gaw had not been advised of his Miranda rights prior to admitting he was the driver of the pickup.

Sgt. Frazier was asked if, following Gaw's arrest, he asked him any additional questions about the vehicle being driven off the road. Sgt. Frazier responded that he may have asked "a couple of questions for accident information." Sgt. Frazier then was asked if the Miranda warning was read to Gaw when they were en route to the Newton County jail. Sgt. Frazier said that was correct; that they probably were traveling down the highway when he advised Gaw of his Miranda rights.


A criminal suspect is entitled to Miranda warnings, consistent with the Fifth Amendment right against self-incrimination, once the suspect is subjected to a custodial interrogation. Miranda, 384 U.S. at 444, 86 S.Ct. 1602. "In Missouri, `custodial interrogation' is defined as questioning initiated by law enforcement officers after a person has been taken into custody...." State v. Glass, 136 S.W.3d 496, 511 (Mo. banc 2004). The State is prohibited from using statements obtained during custodial interrogation not proceeded by Miranda warnings. State v. Copeland, 928 S.W.2d 828, 852 (Mo. banc 1996) (citing Miranda, 384 U.S. at 444, 86 S.Ct. 1602, "It is, of course, well established that the prosecution may not use statements `stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination'") (overruled on other grounds by Joy v. Morrison, 254 S.W.3d 885, 889 (Mo. banc 2008)). See also State v. Werner, 9 S.W.3d 590, 600-01 (Mo. banc 2000).

Gaw's Miranda rights were violated by the initial series of questions asked after he was arrested. These questions elicited Gaw's statement that he had been driving the pickup when it ran off the roadway. The State concedes that these questions violated Gaw's Miranda rights, but argues that Gaw's statements made after his Miranda rights were explained, rendered the earlier violation of Miranda rights harmless.

This case is controlled by Miranda, Seibert and Elstad.

In its seminal decision in Miranda, the Supreme Court of the United States held that, to give effect to the constitutional prohibition against compelled self-incrimination, an individual in police custody must be warned prior to any interrogation that he has the right to remain silent, the right to an attorney, and that anything the individual says may be used against him in a future criminal prosecution. 384 U.S. at 479, 86 S.Ct. 1602.

Failure to give Miranda warnings generally results in exclusion of any statements obtained:

[F]ailure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained. Conversely, giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver.

Seibert, 542 U.S. at 608-09, 124 S.Ct. 2601 (plurality opinion).

Gaw's claim that his post-Miranda waiver statements are inadmissible relies heavily on the United States Supreme Court's decision in Seibert.

This case tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement.

Seibert, 542 U.S. at 604, 124 S.Ct. 2601. In Seibert, the interrogating officer admitted that "he made a `conscious decision' to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question `until I get the answer that she's already provided once.'" Id. at 605-06, 124 S.Ct. 2601.

In these circumstances, the plurality opinion, as well as Justice Kennedy's opinion concurring in the result, concluded that statements made by the suspect could not be admitted at trial, even if those statements were made after administration of Miranda warnings and execution of a written waiver form. To decide whether the post-waiver statements could be admitted into evidence, the four-justice plurality proposed a test that focused on whether Miranda warnings could be effective:

The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function "effectively" as Miranda requires. Could the warnings effectively advise...

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