State v. Nolan
| Decision Date | 12 February 1968 |
| Docket Number | No. 52728,No. 2,52728,2 |
| Citation | 423 S.W.2d 815 |
| Parties | STATE of Missouri, Respondent, v. Raymond Joseph NOLAN, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Jerome T. Bollato, Special Asst. Atty. Gen., St. Louis, for respondent.
J. Whitfield Moody, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
STOCKARD, Commissioner.
Defendant, charged under the habitual criminal act, was found guilty by a jury of the offense of burglary, second degree, and stealing, and was sentenced by the court to imprisonment for ten years for burglary and five years for stealing, the sentences to run concurrently.
Although defendant does not challenge the sufficiency of the evidence, a brief statement of the facts will be helpful. About 8:00 o'clock of the evening of December 27, 1965, a neighbor of Mr. and Mrs. Paul Kochan called the police when he saw moving lights in their house. When the police arrived defendant and a companion ran from the front door of the house and were arrested. Another companion was arrested in the house. Entrance had been gained by prying open a window. An electric razor and a wristwatch which belonged to Mr. Kochan were found in the possession of one of defendant's companions, and a television set, some clothing, a vacuum sweeper, a typewriter and other articles had been piled near the front door.
When a police officer proposed to testify concerning oral statements made by defendant, a hearing before the court and out of the presence of the jury was held at defendant's request to determine whether the oral statements were voluntarily made. At this hearing Officer Moore testified that in his presence Officer Sanders (who was not available as a witness because of a death in his family) told the defendant that 'he could talk to an attorney or friend, make a phone call, that was his right; that he did not have to make a statement, that it could be used against him in court.' Officer Seguin also testified that immediately after defendant's arrest, he advised defendant that 'he didn't have to say anything if he didn't wish to.' Defendant did not testify and presented no evidence at this hearing, and the only evidence concerning the voluntariness of the oral statements of defendant was that related above.
Defendant's first point is that Officer Sanders did not make it clear to him that he had a right to counsel before making an oral confession, and therefore, the court erred in receiving evidence of his oral statements.
This case was tried after the decision in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and before the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. The requirements of the Miranda case are not retroactive, Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, and although the principles of the Escobedo case do apply, appellant does not cite that case and apparently does not rely on it. Under the factual situation, we are of the opinion that it has no application. In this case there is no evidence whatever that defendant had a lawyer when questioned by the police, or that he wanted a lawyer, or that in any way he was denied the right to have a lawyer present or to confer with one prior to talking to the police.
Defendant's argument is that when he was advised as above set out he 'did not realize the legal effect of an oral statement' and believed he could orally confide in the police officers as evidenced by the fact that he tole the officer, after the above information was given to him, that he would be 'glad to tell * * * what happened, but he would not make a written statement.'
We cannot agree with the inference defendant now attempts to place on his willingness to make an oral statement. Nothing the police officers told him could reasonably have caused that impression. He was told that he could talk to an attorney or a friend before making a statement, that he did not have to make any statement, and that if he did it could be used against him. This reference to a statement obviously referred to any statement, oral or written. In addition, even if this contention had some merit, which it does not, the point was not assigned as error in defendant's motion for new trial, and the issue is not preserved for appellate review. State v. McCrady, Mo., 416 S.W.2d 175, 177.
Defendant's second point is that his oral statements were erroneously admitted into evidence because there was no testimony 'that no threats of harm or promises of worldly advantages were made to him as an inducement to obtain the confession.' Defendant's contention is that the burden of proving an in custody statement to be voluntary is on the state, citing State v. Williams, Mo., 369 S.W.2d 408, and that a statement made as the result of threats or promises if inadmissible on the basis that it is involuntary. State v. Smith, 354 Mo. 1088, 193 S.W.2d 499. We do not disagree with these principles, but at the hearing before the court on the issue of the voluntariness of the confession there was no evidence whatever of threats or promises. The testimony of Officer Moore as to what Officer Sanders told defendant purported to include all that Officer Moore heard. Therefore, the reasonable inference from the evidence is that no threats or promises were made. In order for the state to meet its burden, it is not required that it negative every possible circumstance which, if developed, could present an issue of fact as to whether the confession was voluntary. It was sufficient for the state to present a prima facie showing of voluntarinessWhich it did in this case, and if defendant contended that there were special circumstances which would result in the confession being involuntary, it was incumbent on him to present evidence in support of his contention.
We note that defendant's second point was not presented as an assignment of error in his motion for new trial. We have discussed the merits of these two points to demonstrate that there is no occasion to consider whether plain error was involved within the meaning of Criminal Rule 27.20, V.A.M.R.
The trial court made finding, based on the evidence presented to it, that the oral statements were...
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