State v. Jones

• Decision Date: 29 August 1977
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Respondent, v. Bradford R. JONES, Appellant. 28583.
• Court: Missouri Court of Appeals

Page 233

558 S.W.2d 233

STATE of Missouri, Respondent, v. Bradford R. JONES, Appellant.

No. KCD 28583.

Missouri Court of Appeals, Kansas City District.

Aug. 29, 1977.

As Modified On Courts' Own Motion Oct. 11, 1977.

Motion for Rehearing and/or Transfer Denied Oct. 12, 1977.

Application to Transfer Denied Nov. 14, 1977.

Roy W. Brown, John A. Wilson, Kansas City, for appellant.

John C. Danforth, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

ROBERT R. WELBORN, Special Judge.

A jury in the Jackson County Circuit Court found Bradford R. Jones guilty of robbery in the first degree with a deadly weapon and assessed his punishment at seven years' imprisonment. After his motion for new trial was overruled, Jones appealed.

On February 23, 1975, at around 10:30 A.M., two men wearing caps pulled well down on their heads and bandanas covering the lower part of their faces, entered the Revco Drug Store at 103rd and State Line in Kansas City, Missouri. One of the men stuck a gun in the face of James T. White, a Revco employee standing near the store checkout counter, and told White: "This is a robbery, get down on the floor." White complied and the robber emptied the cash register drawers. White and the robber went to the rear of the store where the second robber had gone after entering the store. There the second robber had encountered Joseph G. Trabon, the pharmacist at the store, put a gun in his face and demanded to know where the narcotics were. Trabon opened the case containing narcotics and threw the key on the floor as directed by the robber. White and the first robber reached the rear of the store about that time. White was ordered to lay on the floor and did so. The robbers took "some stuff out of the narcotics cabinets," a box of insulin and syringes and also money in a cash register and the change drawer. The robbers then left and police were called to the scene. Some $400 to $600 was missing from the store.

White described the first robber as 5'7 or 5'8 tall and weighing around 150 pounds. He said the second robber who went to the rear of the store was somewhat larger than the first. Trabon described the man who accosted him as 5'8 or 5'9 tall, weighing 160 to 170 pounds. Neither could describe facial characteristics of the robbers except that both were white males.

At around 5:00 P.M., March 28, 1975, Gerald Wayne Miller, his wife, Margie, and appellant Bradford R. Jones were arrested by Kansas City police at Miller's residence. They were taken to police headquarters. Under police questioning, Miller admitted numerous robberies in Missouri and Kansas, including the Revco robbery, in which he implicated Jones. Typewritten copies, one relating to Missouri offenses and one to the Kansas crimes, of Miller's statement were prepared around 4:00 A.M., March 29.

Detective VanBuskirk of the Kansas City Police Department, who had participated in the interrogation of Miller, took Jones to an interrogation room at police headquarters at 7:10 A.M., March 29. Jones was given a written Miranda warning form which he read and signed. VanBuskirk began an interrogation in the course of which he mentioned that Miller had made a statement. Jones asked to read Miller's statement and VanBuskirk permitted him to do so. The statement included information about the Revco robbery. After he read the statement, Jones asked to see Miller, but the request was denied. Jones told VanBuskirk that he wanted to make a statement, but that he wanted to call his lawyer first. Jones was permitted to call his mother and he asked her to have his attorney, Roy Brown, call him. A short time later, at 9:05 A.M., Brown called and was permitted to talk to Jones. After Brown and Jones had talked, Jones handed the telephone to VanBuskirk and told him that Brown wanted to speak to him. Brown told VanBuskirk that he did not want his client to make any kind of a statement.

After the conversation with Brown ended, VanBuskirk told Jones: "Your attorney don't want you to say anything. * * * I will take you back upstairs." At that time and without further interrogation by VanBuskirk, Jones looked at the Miller statements lying on the desk and said: "What Jerry told you is true."

Jones was indicted for the Revco robbery. Prior to trial he filed a motion to suppress the use in evidence of any oral statement allegedly made by the defendant because they "were made without defendant being properly advised of his rights and the presence of his attorney." The motion also sought suppression of evidence seized at the time of defendant's arrest on the grounds that his arrest was without authority.

A hearing was held on the motion. All of the evidence was directed toward the suppression of the oral statement to VanBuskirk. Appellant denied that he made the statement. VanBuskirk testified that he did. The trial court found that defendant "knowingly, understandingly, and voluntarily, made the statement to the effect, 'What Jerry told you is true.' " The court further found that, although defendant was suffering from withdrawal symptoms at the time of the police interrogation, the evidence showed that he was not confused and that he had no "observable mental instability," and that he was "physically and mentally competent" at the time of the statement.

The court further found that, although defendant's arrest was illegal, "the statement was not the fruit of an illegal arrest." The court stated that it "does note and give weight to the absence of outrageous police conduct, the time elapsed from arrest to the making of the statement, and the presence of intervening circumstances.

"The intervening circumstances include the non-talismanic Miranda warning, opportunity to eat, relatively relaxed discussion, defendant's personal willingness to make a statement, defendant's call to his mother, the attorney's call to both defendant and the detective, the termination of the interview, and the making of the statement without a question requiring response. All these intervening circumstances attenuated the taint of the arrest."

At Jones' trial, the Revco employees, White and Trabon, testified concerning the robbery, but neither could identify Jones. Miller testified in detail to the planning and execution of the robbery. He said that he was the man who stopped at the front of the store and Jones the man who first went to the rear. VanBuskirk testified over renewed objection to the remark of Jones and portions of Miller's statement, dealing with the Revco offense, were placed in evidence. No evidence was offered by the defendant.

The jury returned a verdict of guilty. After defendant's motion for new trial was overruled, the court entered judgment and sentence to seven years' imprisonment in accordance with the jury verdict.

On this appeal, the first point of appellant is that the trial court erred in failing to suppress the use in evidence of his alleged statement to VanBuskirk "What Jerry told you is true." Appellant's attack on the trial court's ruling is on three grounds:

1. That the court erroneously found that the statement was not the fruit of an illegal arrest.

2. That the statement was the product of illegal interrogation, made, as it was according to the state's evidence, after Jones had indicated his desire to remain silent.

3. That the statement was not knowingly and voluntarily made because appellant was suffering from narcotics withdrawal symptoms at the time.

It might be questioned whether or not the motion to suppress encompassed these claims, but the trial court did pass upon them and the state makes no contention otherwise except with respect to the third question. Since the questions will all eventually have to be resolved, they will all be considered as if properly presented.

Dealing with the third question first, Detective VanBuskirk testified that he observed withdrawal symptoms while interrogating appellant. " * * * (H)is whole body would just jerk." On one or two occasions he asked to go to the bathroom because he was sick at his stomach and VanBuskirk took him to the bathroom. VanBuskirk asked him about his last "fix" and was told that it was either earlier that day or the day before. According to VanBuskirk, appellant kept "playing down" his withdrawal, saying that "everything was okay." VanBuskirk described appellant as "very sharp mentally" during the questioning, fully aware of what was going on.

According to Jones, he was in a state of withdrawal, had "cold shivers," nausea and thirstiness. In response to his counsel's inquiry: "Being in that condition, tell the Court whether or not you were fully cognizant of everything that was going on around you?" Jones said: "No, I don't think I was." He stated that it had been at least 36 hours since he "had had anything."

On the record this court cannot say that the trial court's resolution of the issue was erroneous. The trial court considered the presence of withdrawal symptoms, but concluded that, based on evidence as to appellant's mental condition, his physical condition did not preclude his making a statement which was the "result of a rational intellect and a free will * * *." State v. Thomas, 522 S.W.2d 74, 76(1-3) (Mo.App.1975). The case of United States v. Monroe, 397 F.Supp. 726 (D.C.1975), relied upon by appellant, does not require that, as a matter of law, a statement made under circumstances here involved must be held involuntary.

As for the illegal interrogation, the complaint is that the statement was exacted from appellant after he had exercised his right to remain silent. The argument ignores the fact that the statement was not the product of interrogation but was volunteered after VanBuskirk had informed appellant that his right to remain silent would be respected and that the interrogation was at an end. Such circumstances distinguish this case from that of State v....