State v. Naumowicz

Decision Date21 May 1996
Docket NumberNos. 64167,67820,s. 64167
Citation923 S.W.2d 482
PartiesSTATE of Missouri, Plaintiff/Respondent, v. David NAUMOWICZ, Defendant/Appellant. David NAUMOWICZ, Movant/Respondent, v. STATE of Missouri, Respondent/Respondent.
CourtMissouri Court of Appeals

Lew A. Kollias, Emmett D. Queener, Asst. Public Defenders, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., David R. Truman, Assistant Attorney General, Jefferson City, for respondent.

CHARLES B. BLACKMAR, Senior Judge.

The defendant was convicted of burglary in the first degree in violation of § 569.160 RSMo1994, the information charging that he entered an occupied dwelling house with the intent to commit the offense of indecent exposure in violation of § 566.130 RSMo1986, then in force but since repealed. He appeals the conviction and the denial of postconviction relief. We affirm.

1. Sufficiency of the Evidence

K.W., then twelve years of age, awoke about 3 A.M. on March 11, 1992. She went into the hallway to get some medication for her aching ear and discovered the defendant trying to conceal himself against a wall outside her room. She screamed and ran downstairs to her parents' bedroom. The defendant fled and exited the house. K. recognized the defendant as a neighbor but, at her parents' suggestion, did not reveal this identification to the investigating officer.

A similar incident at another location was reported to police in September of 1992. The defendant was taken into custody and made a statement to a detective concerning the present charges, which was received in evidence after a motion to suppress was overruled. Pertinent portions of the statement were reported by the officer as follows:

... He stated that he had his eye on Mr. [W's] twelve year old daughter and he fantasized about fulfilling his sexual needs that he had. And that he wanted to enter Mr. [W's] house and fulfill these fantasies.

. . . . .

The defendant stated that he entered the residence through an unlocked front door and roamed the halls looking into bedrooms where family members were sleeping. He wound up in K's bedroom. The officer then reported the defendant's further statement as follows:

... He wanted to pull the covers off of the girl, and he was hoping that she would be nude, ... without as little clothes as she could have on. That he wanted to masturbate as he looked down at her sleeping.

A person commits the crime of burglary in the first degree under § 569.160 RSMo1994 by knowingly entering a building or inhabitable structure while people are present "for the purpose of committing a crime therein." The crime of indecent exposure as defined by the statute then in force, since repealed, consisted of the knowing exposure of genitals "under circumstances in which he knows that his conduct is likely to cause affront or alarm." Sec. 566.130, RSMo1986.

The defendant argues that he effectively disclaimed any purpose of being observed while pursuing his perverted objective, and intended only to eroticize himself while K. was sleeping. The argument is insufficient. All that is required for the crime of indecent exposure is the likelihood of observation. The defendant had every reason to believe that K. might waken if he made his way into her room and fulfilled his desires. Cf. State v. Parker, 738 S.W.2d 566 (Mo.App.1987). The charge, furthermore, is burglary. The material circumstance is intent to commit a crime. It makes no difference whether or not that intent is fulfilled. State v. Harness, 654 S.W.2d 297 (Mo.App.1983).

2. The Miranda Problem

The defendant argues that constitutional guidelines as prescribed by the Supreme Court of the United States were not followed when he was questioned by Detective Wayne Randall of the Festus police department, and that the court erred in receiving his statements in evidence. He preserved his claim in a pretrial motion to suppress and renewed his objection at trial. He elected not to testify at the suppression hearing, and so we have only Randall's testimony. The point requires careful analysis.

The defendant was arrested during the early morning hours of October 1, 1992, apparently on suspicion of recent "peeping tom" activity, and was taken to the Festus holdover. Randall was not the arresting officer. The report of the arrest, which had come to Randall's attention, stated that the defendant had been advised of his Miranda rights after being arrested and had said that he wanted to talk to a lawyer.

About 9:15 on the morning of October 1, 1992, three or four hours after the arrest, Randall spoke to the defendant in the holdover cell, asking him "if he'd like to speak to me." The defendant said that "he would, as to questions," and was taken to the interview room, an 8 by 12 room with an eight foot ceiling. Only the defendant and Randall were present. Randall was wearing a business suit and was unarmed.

The defendant began their conversation by complaining to Randall about his October arrest. Randall answered some of the defendant's questions. So far as the record shows Randall did not interrogate him about the details of the September incident. Randall then said that he would like to discuss the "burglary first" charges relating to the March incident, and undertook to advise the defendant of his Miranda rights. The defendant said that he was familiar with these rights because his father had been a police officer, and Randall did not advise him further at the time but rather told him that what he said would not be used against him. Defendant then made statements about the incident which is the subject of the present charges. Randall told him that what he said in the interview could not be used against him. The interview lasted about an hour and a half, during which the defendant described the March incident in detail. Randall gave the defendant the opportunity to use a telephone and asked him if he wanted to consult a lawyer. He declined both offers. Randall then suggested that he be returned to his cell to think matters over, and that Randall would then read him his rights and ask some more questions. The interview concluded about 11:15 A.M. Because no statement made during this interview was offered in evidence, we do not need to discuss the implications of the defendant's saying that he was so familiar with the Miranda warnings that he did not need further advice.

At about 2:11 P.M. the defendant was returned to the interview room. Randall asked him if he wanted to talk on the record and the defendant answered that he did. Randall then read him his Miranda rights and the defendant signed a waiver. After some questioning Randall turned on a tape recorder. The defendant made statements concerning his entering the W. home, including those quoted above.

The state starts off on the wrong foot by arguing in terms of the trial judge's "discretion" in admitting evidence. The question here is not one of discretion, but about whether the defendant's voluntary statements must be excluded from evidence under the prophylactic rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and its progeny.

The trial judge certainly could have found that the defendant understood his rights as to police interrogation, and voluntarily waived those rights after he was fully advised of them. The defendant argues, however, that when he said he wanted to consult counsel after being arrested for the September incident, Detective Randall acted improperly in approaching him the next morning. The case primarily relied on is Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981), in which the Court states as follows: "... an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police." Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) makes it clear that the Edwards rule applies even though the later interrogation relates to another offense and is conducted by an officer who did not know about the prior arrest, interrogation, and statement of a desire to consult counsel.

The question remains as to whether Randall's approach to the defendant in the holdover, four hours after his arrest, constituted an interrogation. We have only the officer's version of the incident. From his testimony the trial court could have found that he simply offered the defendant an opportunity to talk, and that the defendant seized on this opportunity to present complaints about his arrest, which did not relate to the present charges. The court could have found that there was no interrogation up to the point at which their...

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4 cases
  • State v. Bell
    • United States
    • Missouri Court of Appeals
    • May 3, 2016
    ...Missouri courts have relied on the plurality's test. See State v. Lyons, 951 S.W.2d 584, 590 (Mo. banc 1997) ; State v. Naumowicz, 923 S.W.2d 482, 486 (Mo. App.E.D. 1996). Here, the trial court found that Bell initiated a discussion under Bradshaw with the detectives based on two inquiries.......
  • Prince v. Bowersox
    • United States
    • U.S. District Court — Western District of Missouri
    • October 2, 2014
    ...Consequently, counsel's decision not to request the instruction is a matter of reasonable trial strategy. See State v. Naumowicz, 923 S.W.2d 482, 487 (Mo. App. E.D. 1996).[Petitioner] has failed to demonstrate not only deficient performance but also resulting prejudice in that "[t]he omissi......
  • Prince v. State
    • United States
    • Missouri Court of Appeals
    • January 15, 2013
    ...Consequently, counsel's decision not to request the instruction is a matter of reasonable trial strategy. See State v. Naumowicz, 923 S.W.2d 482, 487 (Mo.App. E.D.1996). Prince has failed to demonstrate not only deficient performance but also resulting prejudice in that “[t]he omission of t......
  • State v. Reyes
    • United States
    • Missouri Court of Appeals
    • June 24, 2003

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