State v. Harris

• Decision Date: 02 March 2010
• Docket Number: No. ED 91935.,ED 91935.
• Citation: 305 SW 3d 482
• Parties: STATE of Missouri, Respondent, v. Rebecca Lynn HARRIS, Appellant.
• Court: Missouri Court of Appeals

305 S.W.3d 482

STATE of Missouri, Respondent,
v.
Rebecca Lynn HARRIS, Appellant.

No. ED 91935.

Missouri Court of Appeals, Eastern District, Division Two.

March 2, 2010.

305 SW 3d 483

William M. Byrnes, St. Charles, MO, Brian E. Zink, Lake St. Louis, MO, for Appellant.

Chris Koster, Attorney General, Jayne T. Woods, Asst. Attorney General, Jefferson City, MO, for Respondent.

Before SHERRI B. SULLIVAN, P.J. and ROBERT G. DOWD, JR., and PATRICIA L. COHEN, JJ.

305 SW 3d 484

PER CURIAM.

Rebecca Lynn Harris ("Defendant") appeals from the judgment upon her conviction by a jury of one count of second degree assault, Section 565.060, RSMo 2000¹. Defendant argues the trial court erred in (1) denying her motion to suppress statements, (2) overruling her counsel's motion to exclude the late endorsement of witnesses, (3) allowing the video deposition of the State's expert witness to be played for the jury without redacting the witness's legal conclusion, and (4) allowing the double hearsay testimony of Detective James Presson ("Detective Presson"). We reverse and remand.

In the light of the record viewed in its entirety, the following facts were adduced at trial. Caprina ("Mother") and Aaron ("Father") Wakefield hired Defendant as an in-home nanny for their two children, A.W., who was about two years old at the time of the incident, and the victim, who was about four months old at the time of the incident. Defendant began working for Mother and Father on October 1, 2007.

On October 26, 2007, Defendant arrived for work at about 1:30 p.m. Father talked to Defendant about the children's activities for that day, which included nothing out of the ordinary.

At 4:56 p.m., Defendant called 911 because the victim was not breathing. After paramedics arrived, the victim was transported to the hospital. The victim sustained serious injuries.

Later in the evening of October 26, 2007, Detectives Presson and Jay Hultz contacted Defendant at her boyfriend's house to try to find out what had happened that day. Defendant gave the detectives the sequence of events that day, and she stated that when she realized something was wrong with the victim, she blew in his face and gently shook him trying to get him to respond. Defendant also agreed to go to the police station to give a written statement.

Defendant was later arrested on November 29, 2007 and was taken to the police station. Detective Presson placed her in an interview room and explained her constitutional rights to her using a form prepared by the prosecutor's office. Defendant then talked at length to the detectives.

Subsequently, Defendant filed a motion to suppress arguing that she was questioned without being adequately advised of her rights. This motion was denied after an evidentiary hearing. The video of Defendant's interrogation was played for the jury and her written statement was admitted into evidence at trial.

Defendant was convicted of one count of second-degree assault and was sentenced to seven years of imprisonment and received a fine of $3,000.00. This appeal follows.²

In her first point, Defendant argues the trial court erred in denying her motion to suppress statements and in admitting the statements at trial because the admission of such statements was in violation of Defendant's right to be free from self-incrimination and her right to counsel.³ Defendant maintains the statements were made while she was being interrogated by Detective Presson and after she

305 SW 3d 485

had requested counsel several times throughout the interrogation. We agree.

We will affirm the trial court's ruling on a motion to suppress unless the ruling was clearly erroneous. State v. Williams, 277 S.W.3d 848, 851 (Mo.App. E.D.2009). If the ruling is plausible, in light of the record viewed in its entirety, we will not reverse, even if we would have weighed the evidence differently. Id. We defer to the trial court's superior opportunity to determine the credibility of witnesses and to make factual findings. State v. Haslett, 283 S.W.3d 769, 783 (Mo.App. S.D.2009). We review questions of law de novo. Id. We review the factual findings only to determine if they are supported by substantial evidence, viewing the facts in the light most favorable to the trial court's ruling and disregarding contrary evidence and inferences. Williams, 277 S.W.3d at 851. At trial, the State has the burden of production and persuasion to show by a preponderance of the evidence that a defendant's motion to suppress should be overruled. State v. Ramires, 152 S.W.3d 385, 395 (Mo.App. W.D.2004).

To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, the police must terminate their interrogation of an accused in custody if the accused requests the assistance of counsel. State v. Harrison, 213 S.W.3d 58, 68 (Mo.App. S.D.2006); see also Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)(where the Court found if an accused invokes her right to counsel, all interrogation must cease until the Defendant consults with a lawyer, unless the accused initiates further communications with the police). The accused cannot be 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. Id. Officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney. Id.

To invoke a right to counsel pursuant to the Fifth Amendment, one must make an unambiguous, unequivocal and specific request for counsel. State v. Kerr, 114 S.W.3d 459, 463 (Mo.App. S.D.2003). Determining whether the right to counsel has been violated during a custodial interrogation requires a two-step analysis. State v. Lanos, 14 S.W.3d 90, 94 (Mo.App. E.D.1999). First, we must determine whether an accused invoked his or her right to counsel. Id. Second, if an accused invoked his or her right to counsel, we must determine whether the accused knowingly, voluntarily, and intelligently waived the previously invoked right to counsel. Id. To invoke the right to counsel, an accused must make an unambiguous and specific request for counsel in dealing with a custodial interrogation. Id. In other words, the right to not be questioned without counsel attaches only if the defendant indicates a desire for the assistance of counsel in his dealings with the police. State v. Reese, 795 S.W.2d 69, 72 (Mo. banc 1990). The question of whether an accused has invoked the right to counsel is objective. Lanos, 14 S.W.3d at 94. An accused must articulate his or her desire to have counsel present sufficiently clearly that a reasonable police officer, in the circumstances, would understand the statement to be a request for an attorney. Id. If the statement fails to meet the requisite level of clarity for the police officers to understand it to be a request for an attorney, the officers are not required to stop questioning the suspect. Davis v. U.S., 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).

At the beginning of her interview, Detective Presson explained to Defendant her rights using a form and asked her to initial

305 SW 3d 486

next to them if she understood them. When Detective Presson was explaining that Defendant could stop talking to him at any time, the following exchange took place:

Detective Presson: You have a right to talk to a lawyer for advice before we ask you any questions and to have the lawyer present with you during questioning. Do you understand that? If you cannot afford to hire one, a lawyer will be appointed for you before your questioning if you so desire. Do you understand that?

In response to these questions, Defendant initialed the form indicating she understood these rights. The questioning then continued as follows:

Detective Presson: If you decide to answer questions now without a lawyer present, you will still have the right to stop answering questions at any time, for any reason. You also have the right to stop answering questions at any time until you talk to a lawyer, you understand that?

Defendant: No.

Detective Presson: What it's saying is if you decide to answer questions now, without a lawyer present, you still have the right to stop answering questions at any time.

Defendant: Okay.

Detective Presson: Okay. And that's for any reason. So basically saying you can stop talking to me at any time. Okay? What you're, what you're, when you're initialing off, you're saying you understand that, you're going to be willing to talk to me, okay? But you know that you can stop at any time if you want to.

Defendant: I'd rather appoint a lawyer.

Detective Presson: huh?

Defendant: I'd rather appoint a lawyer.

Detective Presson: Do you have a lawyer?

Defendant: No.

Detective Presson: Or are you trying to get one appointed for you?

Defendant: Yeah.

Detective Presson: Okay, now, one getting appointed for you doesn't happen like right now, okay? I want you to make sure that you understand that. We just don't, I mean, if you're going to have to get an attorney or someone appointed, that doesn't just happen right now. Because you have to apply for an attorney, you can't—

Defendant: I understand.

Detective Presson: Can you not afford an attorney? Is that what it is?

Defendant: No.

Detective Presson: Can't afford one? Do you want me to read it out loud again to you?

Defendant: Hmm?

Detective Presson: Do you want me to read it out loud again to you?

Defendant: That's fine.

Detective Presson: Okay. It says, "If you decide to answer questions now without a lawyer present, you still have the right to stop answering questions at any time, for any reason." Okay? "You also have the right to stop answering questions at any time until you talk to a lawyer."

Defendant: So I can talk to a lawyer at any time,

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