State v. Meinhardt

• Decision Date: 08 June 1995
• Docket Number: 19820,Nos. 18950,s. 18950
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Brook Alan MEINHARDT, Defendant-Appellant. Brook Alan MEINHARDT, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 242

900 S.W.2d 242

STATE of Missouri, Plaintiff-Respondent, v. Brook Alan MEINHARDT, Defendant-Appellant.

Brook Alan MEINHARDT, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 18950, 19820.

Missouri Court of Appeals,

Southern District,

Division One.

June 8, 1995.

Gary E. Brotherton, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Traci J. Sanders, Asst. Atty. Gen., Jefferson City, for respondent.

FLANIGAN, Judge.

A jury found defendant guilty of robbery in the first degree, assault in the first degree, and two counts of armed criminal action, and he was sentenced to consecutive terms of imprisonment totaling 90 years. Defendant appeals, and that appeal is Case No. 18950.

After the jury trial, defendant filed a motion under Rule 29.15, ¹ seeking relief from the conviction. The motion was denied after an evidentiary hearing. Defendant appeals from that denial, and that appeal is Case No. 19820. The appeals have been consolidated and will be dealt with separately in this opinion.

No. 18950

Defendant's sole point is that the trial court erred in failing to suppress a statement given by defendant to Detectives Mark Hall and Gary McMurtry on July 14, 1992, because the statement was taken in violation of defendant's right to counsel and his privilege against self-incrimination, as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, and Art. I, §§ 18(a) and 19 of the Missouri constitution, "in that the state filed its formal complaint against defendant on July 14, 1992, thus invoking his right to counsel and the state did not prove that Hall and McMurtry initiated the interrogation of defendant before the formal adversarial process was commenced by the filing of said complaint."

On July 14, 1992, the state filed an amended complaint, charging defendant with the four offenses of which he was later convicted. An earlier complaint had charged only a co-defendant with the same offenses.

Also on July 14, 1992, defendant, after receiving the Miranda warnings, was interviewed by detectives Gary McMurtry and Mark Hall and gave the statement which was the subject of defendant's motion to suppress. The statement was incriminating and dealt with the charged offenses. After an evidentiary hearing, the trial court overruled the motion to suppress. Later, at the jury trial, over defendant's renewed objections, the court admitted into evidence the detectives' testimony concerning the contents of defendant's oral statement.

The testimony of Detective Hall, both at the suppression hearing and at the trial, included the following: "I talked to defendant on July 14, accompanied by Detective McMurtry. Defendant had not requested the interview. I told him that before I could discuss anything involving the case I would have to give him his rights. Exhibit 1 is a 'Miranda waiver form,' which defendant signed after reading it. Defendant said he understood his rights. At no time during the interview did defendant say, 'I don't want to talk to you, I want to talk to my attorney,' or anything to that effect. Defendant never invoked his right to an attorney. Defendant had no problem in talking with me. I did not ask him if he was represented by counsel. I asked him about the facts of the case. There were no questions which he refused to answer. He said he had eleventh grade education."

McMurtry's testimony concerning the interrogation was essentially the same as that of Hall. McMurtry said: "Before the interview commenced, we identified ourselves to defendant and told him we had some questions but before we did that we had to advise him of his Miranda rights. At no time did defendant say he did not want to talk or that he wanted to talk to an attorney or that he ever invoked his rights in any form or fashion. Defendant did not mention any attorney at all. After defendant signed Exhibit 1, he said he wanted to talk with us, and did talk with us. Defendant freely gave his statement to us at the time."

At the hearing on defendant's motion to suppress, the state has the burden to show by a preponderance of the evidence that the motion to suppress should be overruled. § 542.296.6; State v. Franklin, 841 S.W.2d 639, 644 (Mo. banc 1992); State v. Pate, 859 S.W.2d 867, 870 (Mo.App.1993). Appellate review of a ruling on a motion to suppress is limited to a determination of sufficiency of the evidence to sustain the trial court's finding. State v. Villa-Perez, 835 S.W.2d 897, 902 (Mo. banc 1992). "[I]n so doing, we examine all circumstances and the total atmosphere of the case, and defer to the trial court's vantage point for assessing the credibility of the witnesses and weighing the evidence." Id. "Only if the trial court's judgment is clearly erroneous will an appellate court reverse." State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). If the trial court's ruling "is plausible in light of the record viewed in its entirety," this court "may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 184.

The Fifth Amendment's privilege against self-incrimination and the Sixth Amendment's right to counsel both apply to the states as a part of the due process guarantee of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Cases dealing with the relevant portions of the Fifth Amendment, ("nor shall [any person] be compelled in any criminal case to be a witness against himself"), and the Sixth Amendment, ("In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense"), include Davis v. U.S., 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991); Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988); and Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986).

In Davis, the Court held that a suspect is entitled to the assistance of counsel during custodial interrogation but must invoke that right by clearly requesting an attorney, and an ambiguous or equivocal reference by the suspect to an attorney does not require cessation of questioning.

In McNeil, an accused, in jail on a charge of armed robbery and who was represented by counsel on that charge, was questioned by police about a murder. He was advised of his Miranda rights, waived them, and made incriminating statements concerning the murder. The Court held that the accused's invocation of his Sixth Amendment right to counsel in the robbery case did not constitute an invocation of his right to counsel, derived by Miranda from the Fifth Amendment's guarantee against compelled self-incrimination, with respect to the murder.

In Patterson, the Court held that the fact that defendant's Sixth Amendment right to counsel came into existence when he was indicted for murder did not preclude admission into evidence of statements (concerning the murder) made by him to police during custodial interrogation where defendant waived his rights under Miranda. The post-indictment questioning did not violate his Sixth Amendment right to counsel.

Jackson held that after the Sixth Amendment right to counsel attaches and is invoked, any statements obtained from the accused during subsequent police-initiated custodial questioning regarding the charge at issue are inadmissible even if the accused purports to waive his rights.

The Sixth Amendment right to counsel attaches only at the initiation of adversary criminal proceedings. Before proceedings are initiated, a suspect in a criminal investigation has no constitutional right to the assistance of counsel. Davis, 512 U.S. at ----, 114 S.Ct. at 2354. A suspect subject to custodial interrogation, however, has the right to consult with an attorney and to have counsel present during questioning, and police must explain this right to him before questioning begins. Miranda v. Arizona, 384 U.S. 436, 469-473, 86 S.Ct. 1602, 1625-1627, 16 L.Ed.2d 694 (1966). Davis, 512 U.S. at ----, 114 S.Ct. at 2354.

The right to counsel recognized in Miranda requires the special protection of the knowing and intelligent waiver standard. "If the suspect effectively waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him. But if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation." Davis, 512 U.S. at ----, 114 S.Ct. at 2354-2355 (citations omitted).

A suspect who has invoked the right to counsel cannot be questioned regarding any offense unless an attorney is actually present, Davis, 512 U.S. at ----, 114 S.Ct. at 2355 (emphasis added). This prohibition on further questioning--like other aspects of Miranda--is not itself required by the Fifth Amendment's prohibition on coerced confessions, but is justified only by reference to its prophylactic purpose. Id. The suspect must unambiguously request counsel. The suspect must articulate his 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. If the suspect's statement fails to meet the requisite level of clarity, the officers are not required to stop questioning the suspect. Id. If the suspect's statement is ambiguous or equivocal, the officers have no obligation to stop questioning him. Davis, 512 U.S. at ----, 114 S.Ct. at 2356. In Davis, the Court saw "no reason to disturb" the conclusion of the lower courts that the suspect's statement--"Maybe I should talk to a lawyer"--was not a request for counsel, and thus the officers were not required to...