State v. Hutson, 36887

• Citation: 537 S.W.2d 809
• Decision Date: 04 May 1976
• Docket Number: No. 36887,36887
• Parties: STATE of Missouri, Respondent, v. Lawrence Henry HUTSON, Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 809

537 S.W.2d 809

STATE of Missouri, Respondent, v. Lawrence Henry HUTSON, Appellant.

No. 36887.

Missouri Court of Appeals, St. Louis District, Division Four.

May 4, 1976.

Motion for Rehearing or Transfer Denied June 15, 1976.

Floyd E. Lawson, Paris, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

ALDEN A. STOCKARD, Special Judge.

Appellant, Lawrence Henry Hutson, was convicted by a jury of murder in the first degree and was sentenced to life imprisonment. He has appealed from the ensuing judgment. We affirm.

Appellant's only point is that the trial court erred in admitting in evidence his confession because it was 'obtained as the result of promises or inducements held out by the prosecuting attorney and by Captain Webster (a public officer), thus rendering the confession involuntary and inadmissible.'

On December 6, 1973, the prosecuting attorney of Marion County, Missouri, and Captain Charles Webster of the Hannibal Police Force, went to the Menard State Penitentiary at Chester, Illinois, to talk to appellant who was an inmate there serving a sentence for armed robbery. At that time no charge against appellant had been filed by the Missouri authorities. After formal introductions, although the three previously knew each other, appellant was given the 'Miranda' warnings by Captain Webster, and appellant then opened the conversation on the issue of 'plea bargaining' by asking the prosecuting attorney what he would 'recommend in the way of a sentence' if appellant would plead guilty to the murder of Charles Matson and also agree to testify against anyone else that might be involved. The prosecuting attorney first said he would recommend 'about twenty-five years,' but in answer to appellant's subsequent inquiry if he would recommend twenty years the prosecuting attorney replied, 'Yes, I will make that recommendation.' The prosecuting attorney also told appellant that he would 'make no promises' (apparently meaning that he could make no promises as to the result of his recommendation), and that 'It would be nothing more than a recommendation,' and 'would not be binding upon any court.' Appellant then said, 'All right, I am going to tell you how it happened.' Captain Webster then again gave appellant the 'Miranda' warnings, and appellant affirmatively stated that he understood these rights, including that 'he had a right to remain silent' and that 'anything you say can and will be used against you in a court of law.' Appellant then answered questions asked by Captain Webster, all of which were recorded on a portable tape recorder, in which he stated that he shot Charles Matson at the request of Matson's wife who agreed to pay him one thousand dollars. The recording device was in the sight of appellant, and he admitted that he knew his statements were being recorded.

The prosecuting attorney returned to Missouri and filed first degree murder charges against Bonnie Matson, the former wife of Charles Matson. No charges were filed against appellant at that time. Subsequently, appellant wrote a letter to the prosecuting attorney, postmarked January 2, 1974, in which he denied any knowledge of the murder of Charles Matson and stated that he would not be a witness to any matter of which he had no knowledge. The prosecuting attorney then filed a first degree murder charge against appellant, and at arraignment he entered a plea of not guilty. There is nothing to indicate that the prosecuting attorney ever declined to carry through with his proposed recommendation.

At the trial the questions and answers which were recorded on December 6, 1973 at the Menard prison were introduced in evidence over the objections of appellant that the statements were 'the result of promises and illegal inducements offered by the prosecuting attorney' and for that reason were 'involuntary' and 'not binding' upon him.

Following the hearing on appellant's motion to suppress his tape recorded statement the trial court expressly found: (1) Appellant was experienced in criminal proceedings. (2) On a previous occasion, and twice on December 6, 1973, prior to making any statement appellant was informed of his constitutional rights. (3) Appellant understood his constitutional rights, and 'he understandingly, knowingly, intelligently, voluntarily, and affirmatively waived said rights.' (4) Appellant initiated the discussion as to what the prosecuting attorney would recommend, that 'any hoep for leniency came about as a product of his experienced and calculated solicitation,' and that 'the prosecuting attorney's statement as to what he would recommend was solicited freely and voluntarily' by appellant. (5) The tape recorded statement 'was understandingly, knowingly, intelligently, and voluntarily made while defendant was in full possession of his faculties.' (6) An examination of all the circumstances discloses that 'the conduct of the law enforcement officers was not such as to overbear (appellant's) will to resist and to bring about a confession not freely self-determined.' Appellant does not challenge any of these findings except as such challenge is necessarily contained in the contention that the statement of the prosecuting attorney that he would recommend a sentence of twenty years results in the statement being involuntary.

We have here the factual situation where appellant instigated the inquiry concerning plea bargaining, and as a result of his inquiries the prosecuting attorney told him that if he elected to plead guilty to a charge of murder, not then filed, and to testify in another case he would recommend to the court that appellant be sentenced to a term of twenty years. This was not a proposal or promise made by the prosecuting attorney to induce a plea of guilty on the part of appellant or to obtain a confession. Instead appellant volunteered to relate the facts of the homicide, or as he said, 'to tell * * * how it happened.' As far as the record shows neither the prosecuting attorney nor the police officer asked appellant to make a statement, but when he volunteered to do so, the statement in the form of questions and answers was recorded on tape with his knowledge and approval.

Appellant was not subjected to lengthy interrogation and there were no threats. He was not in any way mislead or given any false promise. He argues, however, that under the circumstances of this case his statement, which amounted to a confession, must be considered to have been involuntary because it was made after the prosecuting attorney answered his question and told him that he would recommend a sentence of twenty years. Appellant relies on a statement (by way of dictum, see Pontow v. State, 58 Wis.2d 135, 205 N.W.2d 775 (1973)), in Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed, 568 (1897) as follows: "But a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence."

The facts of the Bram case were that the defendant was in the custody of the police of Halifax, Canada, who had him brought from jail to a private office, and 'when there alone with the detective he was stripped of his clothing, and either whilst the detective was in the act of so stripping him, or after he was denuded, the conversation offered as a confession took place.' The detective told defendant that a person who was also being held had made a statement that he saw defendant commit the murder. Defendant replied, 'He could not have seen me.' No promise of any kind was made to the defendant by the detective. The court held that 'the situation of the accused, and the nature of the communication made to him by the detective, necessarily overthrows any possible implication that his reply to the detective could have been the result of a purely voluntarily mental action.' We thus see that the Bram case did not involve the issue of whether a promise of leniency made by the prosecutor to an accused during discussions concerning the disposition of the case, without anything more, results in a statement by the accused being involuntary as a matter of law. However, the dictum statement in the Bram case as above set out has subsequently been quoted with approval. For example, see Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). But, in the Brady case the court accepted the defendant's confession in the form of a plea of guilty even though it was induced by the implied promise of a lesser penalty if he waived a jury trial. The substance of the ruling in the Brady case was that in the determination of the voluntariness of a confession in the form of a plea of guilty, all the circumstances must be considered. It was held: '(The) Bram (case) is not inconsistent with our holding that Brady's plea was not compelled even though the law promised him a lesser maximum penalty if he did not go to trial. (The) Bram (case) dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency (but as previously noted we do not find that any promise was made) was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess.' Although appellant in this case was not represented by counsel when he made the statement in the form of a confession, no...