State v. Gibson, WD
| Decision Date | 13 October 1981 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Gary E. GIBSON, Defendant-Appellant. 32158. |
| Court | Missouri Court of Appeals |
Kranitz & Kranitz, P. C., St. Joseph, for defendant-appellant.
John Ashcroft, Atty. Gen., Jefferson City, Catheryn B. Starke, Asst. Atty. Gen., Kansas City, for plaintiff-respondent.
Before MANFORD, P. J., and DIXON and NUGENT, JJ.
Defendant appeals a sodomy conviction and a jury-imposed sentence of five years. The offense was charged and conviction had under § 566.060.1(2). 1
The conviction must be reversed and remanded for error in the admission into evidence of the oral confession of the defendant after defendant had requested counsel. Two other issues raised by the defendant will likely recur on retrial: first, the competency of the victim witness; and, second, the defendant's claim that the trial court should have instructed the jury as to the lesser included offense of sexual misconduct. § 566.090.1(2).
The defendant and the mother of the nine-year-old victim were cohabitating and were the natural parents of a son. The victim was the child of an earlier marriage of the mother. On September 29, 1979, the mother was absent from the home. The nine-year-old victim related at trial an act of fellatio and an act of anal intercourse by the defendant. Sometime the next day the police interviewed the child. This was around 11 a. m. The inquiry immediately focused upon the defendant. He was arrested and taken to the police station by officers of the St. Joseph police department. He was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), at 9:38 p. m. After defendant signed the form acknowledging the warnings and waiving his rights under Miranda, the officers began an interrogation. After several routine questions as to defendant's age and employment, the inquiry turned to the offense. When asked about the events of the evening before, the defendant, according to one of the officers, said, "I can't talk about it." The defendant's version of the events thereafter differs as to whether he refused to continue with the interrogation. The briefs have covered the issue of the defendant's right to interrupt the questioning at any time, but that issue need not be reached or decided. What occurred with respect to the defendant's claim of a right to counsel based upon what the police officers testified to at the hearing on the motion to suppress is dispositive of the Miranda claim.
What occurred at the interrogation with respect to the defendant's request for counsel is best shown by verbatim excerpts from the testimony. Lt. Powell, one of the interrogators, when questioned, gave the following responses:
"Q. Lieutenant Powell, you said he did ask for an attorney?
A. Just the one time.
Q. Did you advise him of his right to an attorney after he asked for an attorney?
A. Yes; he was advised he could have an attorney if he so desired.
Q. That was the start?
A. And we advised him at that time when he asked for one, that he could have an attorney if he so desired.
Q. Who gave him the phone book?
A. I don't recall; either myself or Richard Brown, Sergeant Brown. Sergeant Brown, I believe.
Q. After he had requested an attorney, did you go through it and advise him again of his right to an attorney?
A. Yes; that he had a right to have an attorney present if he so desired.
Q. He requested his father be allowed to come down?
A. Sir, I don't recall. I don't recall that.
Q. Did you continue to ask him questions after he had requested an attorney?
A. Yes."
Subsequently examined by the trial court, Powell said:
"Q. How many times did he tell you that he would rather not talk about it?
A. Just twice; once when I first started with him, then the time that he asked for the attorney. We handed him the phone book and told him he could call anyone he so desired.
Q. Had he nodded his head to any of these questions before he asked for the attorney?
A. I don't recall, Judge.
Q. Did he deny some of these things? He never did deny anythings (sic)?
A. No, sir, he did not.
Q. What did you talk about between the time you said he asked for an attorney and he said he would rather not talk about it?
A. Then I went ahead and ignored that. I just went ahead and asked him again. I asked him how long he had lived with the girl's mother and
Q. He answered these questions?
A. Yes. Then I asked him where he worked, this type of thing.
Q. What were the questions you asked him just before he asked for a lawyer?
A. As I recall, we were getting into the allegations that had been made against him. That's when he said he thought maybe he should talk to a lawyer.
Q. Did he deny any of those things before he asked for a lawyer?
A. No, sir. He said he thought maybe he had better get a lawyer, something like that. That's when we handed him the phone book and said call anyone you wish.
Q. Did he at any time say he didn't want to talk to you, or did he say he just wanted to get a lawyer?
A. I believe he said he thought maybe he ought to talk to a lawyer, or he ought to get a lawyer. " (Emphasis supplied)
Brown, the other interrogating officer, also testified at the suppression hearing as follows:
"Q. Now, what about his asking for an attorney, Sergeant Brown; do you remember him at any time telling you he wanted to speak with an attorney?
A. Yes, I do. He asked if he could he said, 'I think I need an attorney.' At that time we gave him a telephone book.
Q. What did he do?
A. He opened the telephone book, and I can't recall which page it was, a wrecker service or doctor that he looked up. I said, "Those are not attorneys that you are looking at there.' He said, 'I think I'll wait until morning,' or 'I'll wait until in the morning.'
Q. Did he indicate to you that he didn't want an attorney?
A. He didn't say specifically that he didn't want an attorney. He said, 'I think I'll wait until in the morning and get hold of my dad.'
Q. Did he at that point say he didn't want to talk to you any more?
A. No, he didn't.
Q. Did you continue to talk with him?
A. Yes, we did.
Q. That would be regarding the different acts which the report contained supposedly occurred to the victim in this case?
A. Yes, it did."
It should be noted at this point that the interrogation lasted over two hours and thus concluded about 11:30 p. m. The defendant has a fourth grade education acquired in a class for retarded children.
Miranda, supra at 474, 86 S.Ct. at 1628, says:
If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during every subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.
(Emphasis added).
The trial court apparently believed that even if defendant had requested an attorney, he, by "responding," waived his right to remain silent and thus his claim to counsel.
Edwards v. Arizona, --- U.S. ----, 101 S.Ct. 1880, 68 L.Ed.2d 378 (), laid to rest any doubt as to the permissibility of continued interrogation and responses from the defendant after a request for counsel. The Supreme Court said:
Second, although we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, see North Carolina v. Butler, supra, (441 U.S. 369,) at 372-376, 99 S.Ct. 1755, at 1756-1759, 60 L.Ed.2d 286, the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.
(Emphasis supplied).
Our own Supreme Court has had occasion to speak to the ruling of the Edwards case, supra, State v. Oldham, 618 S.W.2d 647 (Mo.banc 1981), a case of custodial interrogation in which the defendant requested an attorney and the initial interrogation ceased. Thereafter, another officer undertook to question the defendant and obtained incriminating statements.
Discussing Edwards and particularly the quotation from Edwards, supra, the Supreme Court of Missouri held the statements inadmissible, saying:
Courtroom application of the guidance and dictates of the Edwards case necessitates a readiness to answer two questions, i. e., (1) Did the accused, after having expressed a desire for assistance of counsel, initiate further communication? (emphasis added) and (2) If the answer to question one is "yes" did the accused do so voluntarily, knowingly and intelligently?
Suffice it to say that in the instant case there is nothing in the record suggesting that appellant initiated those further communications from which the challenged statements were taken; but, to the contrary, the opposite is clearly evident. The answer to question number one being "no," no inquiry need be made reference question number two.
The trial court erred in overruling appellant's Motion to Suppress the challenged statements and for that reason the present conviction cannot stand.
State v. Oldham, supra at 649.
There can be no question that in this case the defendant claimed his Miranda right to coun...
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