State v. Holman
| Decision Date | 24 March 1998 |
| Docket Number | Nos. WD,s. WD |
| Citation | 965 S.W.2d 464 |
| Parties | STATE of Missouri, Respondent, v. Michael James HOLMAN, Appellant. 51713, WD 53504. |
| Court | Missouri Court of Appeals |
John W. Rogers, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Christine M. Blegen, Asst. Atty. Gen. Office, Jefferson City, for respondent.
While Michael James Holman was in jail awaiting trial on murder charges for the 1993 shooting death of William Stufflebean, Jr., he decided to confess to murdering Stufflebean. He acted without advice from his attorney. After discussing the matter with only his stepfather, Holman asked his stepfather to summon a deputy to the jail to take his confession.
Appealing the circuit court's judgment convicting him of first degree murder and armed criminal action, Holman contends that his confession stemmed from the deputy's telling him the day before, in violation of his right to a lawyer's assistance, that his co-defendant had confessed and had implicated him in Stufflebean's murder. He argues that the circuit court erred in denying his motion to suppress the confession. He also complains that the circuit court erred in refusing his request for a change of venue, by not letting him present evidence attacking the character of the deputy who took his confession, and by erroneously instructing the jury concerning his confession. He also challenges the circuit court's denial of his Rule 29.15 motion to set aside the judgment on the ground that his attorney's assistance was ineffective.
At a hearing to consider Holman's motion to suppress, Holman's stepfather, Bernie Gayle Cabra, testified that Holman called him on Saturday night, October 23, 1993, from jail and asked him to summon Deputy Bill Wright to the jail so Holman could confess to Stufflebean's murder. Cabra testified:
Q What did [Holman] say ... ?
A He said, "Well, [D]ad, I just want to change my statement," and I said, "Why?" He says, "Well," he said, "I shot B.J." 1
....
Q ... What did you ask him next or say to him next that you recall?
A I said, "Son, if you're going to change your statement you should contact your attorney," and he said, "Well, [D]ad, I've tried and I can't get hold of my attorney," and I said, "Well, being that you can't get hold of your attorney before that you make a statement without your attorney you should wait till in the morning and if you want to make a statement then you call me back." "If we can't get hold of your attorney"--I told him that I'd try to. "Well, then, I'll call Bill."
Cabra said that Holman called him the next morning:
Q The next morning then your phone rings and you pick it up. Who was on the other end?
A [Holman].
Q Tell us about that conversation, Mr. Cabra[.]
A He said, "Dad, I want to go ahead and make that"--"I want to get it over with." He said, "Just have Bill come over here."
Q Did you then call--as your son asked you to do, did you call Bill Wright?
A I asked [Holman] if he was sure.
Q Okay. Then he said, "Yes, sir?"
A I called Bill.
During cross-examination, Cabra testified:
Q ... Did [Holman] indicate to you that Bill Wright had already been to talk to him [on October 23]?
A He did.
Q And he had indicated to you as well that Bill Wright had told him when he contacted you--or [Holman--]that day, that Melissa 2 had given Bill Wright a statement?
A He did.
....
Q [D]id [Holman] also tell you that what Bill Wright had told him was that Melissa had told Bill Wright that [Holman] had killed B.J.?
A Yes.
Q And this conversation with [Holman] he was telling you what Bill Wright--what had happened before he called you?
A That's true.
Q That same day, is that correct?
A Yes, [s]ir. He didn't say--didn't tell me the same day. He told me that he had--that Bill had talked to him. He didn't specifically say that day, no, [s]ir.
Q But he had said that--[Holman] told you that Bill had told him about what he found out from Melissa; is that true?
A Yes, [s]ir.
Cabra later clarified that his stepson had asked for Wright to talk to him "so he could give him another statement as the result of what [Wright] had told him."
Wright did not testify at the suppression hearing. He died before the hearing. Other witnesses testified that Wright had traveled with Melissa Stufflebean from Oklahoma to the Livingston County jail on October 23, 1993. The implication of this testimony was that Wright's first conversation with Holman occurred on the same day that Holman first called his stepfather.
The circuit court denied Holman's motion to suppress. In reviewing this decision, we view the facts in the light most favorable to the court's ruling, and we disregard all evidence and inferences which are contrary to the court's ruling. State v. Milliorn, 794 S.W.2d 181, 183-84 (Mo. banc 1990). Because the circuit court's denial of a motion to suppress is interlocutory, we may consider the record made at the pretrial hearing and at trial. State v. Collins, 816 S.W.2d 257, 258 (Mo.App.1991).
The right to a lawyer's assistance is guaranteed to persons subjected to state criminal investigation and prosecution by the Fourteenth Amendment to the United States Constitution and Article I of the Missouri Constitution. 3 Under the rights guaranteed by these constitutional provisions, an accused who has requested or obtained a lawyer cannot be subjected to further interrogation by the police until the lawyer has been made available to him or her. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981). When an accused invokes his or her right to legal counsel, "any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." Michigan v. Jackson, 475 U.S. 625, 636, 106 S.Ct. 1404, 1411, 89 L.Ed.2d 631 (1986). The United States Supreme Court has defined "interrogation" as "not only ... express questioning, but also ... any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). 4
The circuit court must presume that any waiver of rights to counsel in a police-initiated discussion was invalid, but "nothing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney." Michigan v. Harvey, 494 U.S. 344, 352, 110 S.Ct. 1176, 1181, 108 L.Ed.2d 293 (1990). The state's burden is to prove by a preponderance of the evidence that an accused has voluntarily, knowingly, and intelligently relinquished his or her rights. Id. at 354, 110 S.Ct. at 1182; State v. Lyons, 951 S.W.2d 584, 591 (Mo. banc 1997), cert. denied, --- U.S. ----, 118 S.Ct. 1082, 140 L.Ed.2d 140 (1998).
The state met its burden. Holman asked Cabra to ask Wright to come to the jail to talk to Holman. The impetus for Wright's interrogation of Holman on October 24 came from Holman through his stepfather. When Wright took Holman's confession on October 24, he advised Holman several times before beginning the conversation and again before taking Holman's confession of his right to have his attorney present and his right to remain silent. Holman assured Wright each time that he wanted to waive his rights. Cabra had admonished Holman to talk to his attorney and to think about what he was doing before summoning Wright. Holman assured Cabra that he wanted to waive his rights. By a preponderance of the evidence, Holman initiated the discussion with Wright, and then validly waived his right to have his attorney present before giving his confession to Wright. State v. Owens, 827 S.W.2d 226, 228 (Mo.App.1991).
Holman focuses, however, on evidence that Wright and Holman had engaged in a conversation the previous day, on October 23, during which Holman learned that Melissa Stufflebean had confessed and had implicated him. He suggests, without pointing to any evidence to support his contention, that Wright initiated the conversation. To the contrary, the circuit court heard evidence that Holman had asked jail officials to send any law enforcement officers from Daviess County which might appear at the jail to see him. The evidence supports an inference that Holman wanted to talk to Wright or any other officer from Daviess County and initiated the conversation with Wright on October 23. Viewing the evidence in the light most favorable to the circuit court's ruling and disregarding all evidence and inferences to the contrary, we affirm the court's ruling.
In his second point, Holman contends that the circuit court erred by sustaining the state's motion in limine and by denying his attempt at trial to present Roscoe Moulthrop's testimony to impeach Wright's reputation for truthfulness and veracity. Wright died before the trial. Holman, nonetheless, contends that Wright "testified" because his voice was on the tape recording of Holman's confession played for the jury and because he signed as a witness on Holman's written statement of confession. Holman contends, relying on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), that rejection of Moulthrop's testimony deprived him of his constitutional right to cross-examine witnesses.
In sustaining the state's motion in limine, the circuit court said, "It's my feeling that this is a matter of impeachment of a witness and if he's not a witness then there is no right to impeach by showing a bad reputation for truth and veracity, and for that reason I don't think we should get into this area[.]" When Holman later made an offer of proof of Moulthrop's testimony, the circuit court said that "specific acts of...
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