State v. Mitchell, 62130

CourtUnited States State Supreme Court of Missouri
Citation611 S.W.2d 211
Docket NumberNo. 62130,62130
PartiesSTATE of Missouri, Respondent, v. Arthur MITCHELL, Appellant.
Decision Date09 February 1981

Joe F. Willerth, Independence, for appellant.

John Ashcroft, Atty. Gen., Nancy Kelley Baker, Asst. Atty. Gen., Jefferson City, for respondent.

SEILER, Judge.

The question presented is, where there were no Miranda warnings given to defendant after his arrest and prior to his being interrogated by the police, can statements made be used by way of impeachment over defendant's objection that they are not voluntary, without first a hearing and affirmative determination by the trial court as to their voluntariness?

There was evidence from the state's witnesses from which a jury could reasonably have found that defendant broke into the victim's house and raped and robbed her. The jury convicted him of burglary, robbery, and rape, with sentences of fifteen years, life, and fifteen years respectively. Defendant denied the commission of any crime. Although he was apprehended in the neighborhood of the crimes shortly after they occurred, he offered an alibi, contending he was in the area on legitimate purposes.

On cross-examination of defendant, the prosecutor started to ask defendant whether he had made any statements to Detective Fred Jordan early in the morning at police headquarters, following arrest. Defendant's counsel objected, saying that defendant was not given the Miranda warning, and also on the basis of "the grounds raised in my motion to suppress statement which has been filed with the court." One of the grounds contained in the motion to suppress was "(t)hat said statement was not voluntary and it was the result of mental and physical coercion and duress and threats." Counsel for the state argued that the matter was proper impeachment, that "(a)ny prior statement, whether or not he received Miranda, or not, it is proper to try to impeach him on a prior inconsistent statement." The court agreed and overruled the objection. Counsel for the state then elicited from defendant that he told Jordan a certain story as to his activities the night of the crime and that what he told the police was not the truth. What he told Jordan also differed materially from the alibi he testified to on direct examination, including the explanation of how he happened to be present in the vicinity of the crime when arrested by the police a short time after the crime occurred. In his closing argument to the jury, the prosecutor commented that defendant had admitted he had lied, that he had lied twice, once to the detective and also to the two police officers who arrested him.

On appeal, defendant contends the admission of the statement made to Officer Jordan, over defendant's objection, was in violation of his constitutional rights, that the court did not determine that the statement was freely and voluntarily given and its use as impeachment permitted the jury to infer that defendant had lied during direct examination.

The state contends that even though no Miranda warning was given, nevertheless the statement was voluntary and was sufficiently trustworthy to permit its use.

As earlier stated, defendant's counsel filed a motion to suppress statement of defendant, listing several grounds, one being that the statement was not voluntary and another that it was obtained in violation of defendant's constitutional rights under art. I, § 19 of the Missouri Constitution and the fifth, sixth and fourteenth amendments to the United States Constitution. There is nothing in the record to show that this motion was acted upon, but the following does appear: The morning of trial defendant filed a pro se motion to dismiss counsel and appoint someone else. There was a hearing on this motion during which defendant explained to the court that one reason for his dissatisfaction was that counsel had failed to file a motion for dismissal as requested by defendant on the ground that defendant "wasn't read my Miranda warning when I was first arrested."

The court inquired: "Does the State intend to introduce a confession in this case?", to which the prosecutor responded: "To my knowledge the defendant didn't make a confession." Then, in a colloquy between the court and the defendant covering several pages of transcript, the court, first asking, "Why would you need a Miranda warning if there was no confession?", explained to the defendant that the Miranda requirement applies if there is a confession and the state wants to introduce it, that there was nothing like that in the case, that the police do not have to give the warning unless they try to put a confession in evidence, that defendant would have to take his word on the point, that it would not have helped had his lawyer filed the motion defendant asked him to file, it would have been a waste of time, and so the court was overruling defendant's motion to dismiss counsel. The trial then proceeded. The court thus entered into trial on the assumption no confession had been obtained and without holding a hearing on the motion to suppress defendant's statement.

The law is clear that statements obtained by the police where the Miranda rules have not been observed may be used for impeachment purposes only if they are in fact voluntary. In Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1970), the court held it did not follow such statements were barred for all purposes, "provided of course that the trustworthiness of the evidence satisfies legal standards." In Oregon v. Hass, 420 U.S. 714, 722, 723, 95 S.Ct. 1215, 1221, 43 L.Ed.2d 570 (1975), the court reiterated the above language from Harris and closed by referring to the "traditional standards for evaluating voluntariness and trustworthiness." In Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), where defendant's statements in response to a detective's questions were used in an effort to impeach defendant, the court held such statements were admissible for impeachment, even in circumstances violating the strictures of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), "if their 'trustworthiness satisfies legal standards' ... But any criminal trial use against defendant of his involuntary statement is a denial of due process of law 'even though there is ample evidence aside from the confession to support the conviction.' ... If, therefore, Mincey's statements to Detective Hust were not 'the product of a rational intellect and a free will' ... his conviction cannot stand ..."

In Missouri the law is stated thus in State v. Sager, 600 S.W.2d 541, 557 (Mo.App.1980): "There are two criteria which must be followed when using statements by way of impeachment and rebuttal. The first is a showing that such statements are voluntary." In the case at bar, objection was made that the statements were not voluntary. Without making any determination as to whether the statements were voluntary, the court overruled the objection, on the ground that the absence of Miranda warnings does not prevent use of a statement for impeachment purposes. This is true, but only if the statement is voluntary and here it was objected that it was not.

As said, defendant contended his statement was not voluntary, first in a motion to suppress, which was never acted upon, and second in his objection at the time the statement was offered against him. The burden of proof as to voluntariness, once the confession or statement is challenged, is upon the state. State v. Hunter, 456 S.W.2d 314 (Mo.1979); State v. Sager, supra. Here the issue was not explored by the court and we cannot determine from the present state of the record what facts might have been presented had the court conducted a hearing. It is conceded that defendant was struck in the head by one of the policemen shortly after his arrest. The police officer, McCoy, said defendant tried to break away and "I subdued him." McCoy, using his fist, in which he was holding a "walkie-talkie" hand radio, knocked defendant to the ground. This produced a bleeding laceration on defendant's forehead. On cross-examination, McCoy was unable to recall if he struck defendant directly with the radio. He also stated that he "had to subdue him again", without detailing what he did. Defendant's version was that McCoy hit defendant without provocation, McCoy first calling him a liar; that he was knocked to the ground, was unconscious for a short time and when he regained consciousness, he found himself handcuffed and someone was kicking him.

Defendant said he had been smoking marijuana and "snorting" cocaine earlier in the evening and was somewhat "high", but that he remembered the events of the evening. McCoy said that he saw no indication that defendant was high on drugs. Defendant also said his leg was injured when he was forced into the police car.

From the scene of arrest, defendant was taken to the police station. He was questioned by Jordan during early hours of the morning, but the record is silent as to when, for how long, what the circumstances were of the questioning, or what defendant's condition was at the time.

A hospital report from Truman Medical Center was put in evidence. It was dated June 20, 1979, 5:25 a. m., and stated that patient was hit by police with flashlight over right eye, sustaining laceration and was knocked out. It stated further that patient says he was unconscious for less than a minute and that his gait has been slightly unsteady. He also complained of pain in the left knee, but there was no swelling or pain to palpation along joint line or lateral or medial instability. Physical examination disclosed a very superficial laceration of the right forehead; closed with steristrips. Condition upon release was satisfactory. It does not appear whether the hospital examination took place before or after Jordan questioned defendant.

The fact that the court gave an instruction (MAI-CR2d), to the...

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  • State v. Wise, 15170
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