State v. Norman

• Decision Date: 20 May 2014
• Docket Number: No. ED 99620.,ED 99620.
• Citation: 431 S.W.3d 563
• Parties: STATE of Missouri, Respondent, v. Terrance Teron NORMAN, Defendant/Appellant.
• Court: Missouri Court of Appeals

431 S.W.3d 563

STATE of Missouri, Respondent,

v.Terrance Teron NORMAN, Defendant/Appellant.

No. ED 99620.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 20, 2014.

Margaret Mueller Johnston, Woodrail Centre, Columbia, MO for Appellant.

Chris Koster, Attorney General, Gabriel Etter Harris, Assistant Attorney General, Jefferson City, MO, for Respondent.

OPINION

MARY K. HOFF, Presiding Judge.

Terrance Teron Norman (Defendant) appeals from the judgment and sentence upon his conviction following a jury trial of one count of first-degree robbery, in violation of Section 569.020.¹ The trial court sentenced Defendant to a term of twenty-five years' imprisonment and checked the box on the judgment form indicating that Defendant had been found beyond a reasonable doubt to be a dangerous offender, pursuant to Section 558.016. Defendant claims the trial court erred (1) in denying his motion to suppress statements and admitting at trial statements he made to the interrogating officer because he invoked his right to counsel and to remain silent; and (2) in sentencing him as a dangerous offender because the State never alleged nor presented evidence establishing beyond a reasonable doubt that he was a dangerous offender. We affirm as modified.

Factual and Procedural Background

Defendant does not challenge the sufficiency of the evidence to uphold his convictions and sentence. Viewed in the light most favorable to the verdict, the evidence at trial established the following relevant facts:

On January 25, 2012, Defendant entered the backseat of Detective Juan Wilson's (Detective Wilson) vehicle. Detective Wilson was an undercover task force officer working with a confidential informant (Informant). The Informant had brokered a transaction between Detective Wilson and Defendant in which Defendant would sell to Detective Wilson a .40–caliber Smith and Wesson handgun in exchange for $450. Initially, Detective Wilson had offered to pay $600 for the handgun but later decided he would pay only $450. Detective Wilson, Informant, and a surveillance team waited for Defendant at an appointed location for the transaction to occur. Detective Wilson wore a wire and had a concealed video surveillance device to capture the interaction with Defendant, although part of the video surveillance device's view was occasionally obscured. When Defendant entered the vehicle, Detective Wilson handed him the $450. Defendant pulled out the handgun, then removed a gun magazine containing hollow point bullets from his pocket, inserted the magazine into the handgun, pointed the gun at Detective Wilson, and instructed Detective Wilson not to move. Defendant then exited the vehicle, got into the vehicle he had arrived in, and sped away. The surveillance team was unable to stop Defendant's vehicle, and a high-speed chase ensued. Defendant's vehicle got away. Later, police obtained an arrest warrant for Defendant and issued a media release to publicize Defendant's photograph. As a result, Defendant eventually turned himself in.

After Defendant turned himself in, Detective Donald Stepp conducted a videotaped interview of Defendant. While Detective Stepp was advising Defendant of his Miranda² rights, Defendant initially indicated that he was not going to make a statement. Subsequently, however, Defendant spontaneously made statements that he had not committed a robbery, “especially with a gun,” but Defendant admitted to being at the crime scene during the robbery. Defendant also told Detective Stepp that he had gone to the location of the robbery to “meet and greet” Detective Wilson, not to rob him. Defendant stated that Detective Wilson had handed him the $450. Defendant did not say anything about selling a handgun and denied having a gun in his possession during the encounter with Detective Wilson. Defendant told Detective Stepp that telling a person “don't move” is a sign of a robbery, and Defendant gestured with his finger and hand as though he held a gun. Defendant also told Detective Stepp that Defendant thought he was going to prison for 20 years and that he was not ready to go. The State later charged Defendant by indictment with first-degree robbery, armed criminal action, and witness tampering. ³

Prior to trial, Defendant filed a motion to suppress the statements he had made to Detective Stepp during the videotaped interview. Defendant's motion alleged that his interrogation by police did not cease when Defendant indicated that he wished to remain silent and that Defendant wanted to have appointed counsel present during the interrogation. At a hearing on the motion to suppress statements, Defendant, the State, and the trial court agreed to decide the merits of the motion based upon a review of the first 10 to 15 minutes of the videotaped interview. After viewing the agreed-upon segment of the videotape, the trial court denied Defendant's motion to suppress the statements on the grounds that (1) Defendant had made a request for an attorney but then voluntarily reinitiated the conversation with police after being advised of his Constitutional rights; and (2) Detective Stepp did not coerce or place undue influence upon Defendant during the conversation.

At trial, Detective Wilson and Informant testified regarding the encounter with Defendant on January 25, 2012. The videotape of the incident was also shown to the jury. Detective Stepp testified regarding Defendant's statements during the interview. The State introduced the videotape of the interview, and Defendant renewed his objection to the evidence of his statements. The trial court overruled the objection, and the videotape was played for the jury.

Defendant also testified at trial. Defendant testified that he had conversed with Informant a day or two before the day of the robbery. Defendant testified that Informant had sent a text message to Defendant requesting a handgun. Defendant replied that he had a .40–caliber Smith and Wesson even though he actually did not have such a handgun. Defendant further testified that he and Informant also discussed a price. Informant initially offered to pay Defendant $600 for the handgun but later said he only had $450. Defendant told Informant that he would accept $450 but that Informant would owe Defendant $150. Defendant testified that he met Informant and Detective Wilson at the appointed location for the transaction but that he did not have a firearm when he entered Detective Wilson's vehicle. Defendant testified that Detective Wilson handed him the $450, that he counted the money, and that he placed it in his jacket pocket before saying “don't move.” Defendant testified that he told Detective Wilson not to move because he was going back to his vehicle. Defendant admitted that, during his interview with Detective Stepp, he had mistakenly said that “don't move” is a sign of a robbery. Defendant testified that he was only trying to “fast talk” Detective Wilson into thinking Defendant had a handgun to sell and that he had planned to steal the money and run. Defendant testified that Detective Wilson had lied about Defendant having a handgun and loading the magazine while Defendant was in Detective Wilson's vehicle.

After the close of all the evidence, the jury found Defendant guilty of first-degree robbery and not guilty of armed criminal action. The jury recommended that Defendant serve a sentence of 25 years' imprisonment. Defendant filed a motion for new trial alleging that the trial court erred in denying his motion to suppress statements. The trial court subsequently overruled Defendant's motion for new trial, sentenced Defendant in accord with the jury's recommendation, and indicated Defendant was a dangerous offender on the judgment form. This appeal followed.

Defendant's Invocation of His Right to Counsel

In his first point on appeal, Defendant claims the trial court erred in denying his motion to suppress statements made to Detective Stepp because the statements were made during a custodial interrogation after Defendant unequivocally invoked his rights to counsel and to remain silent and did not thereafter voluntarily reinitiate the conversation with the detective. We disagree.

Our review of the trial court's ruling on a motion to suppress evidence is limited to a determination of whether the evidence was sufficient to support the trial court's ruling. State v. Haslett, 283 S.W.3d 769, 783 (Mo.App.S.D.2009). We will affirm the trial court's ruling on a motion to suppress unless the ruling was clearly erroneous. State v. Harris, 305 S.W.3d 482, 485 (Mo.App.E.D.2010). The ruling is clearly erroneous only if we are left with a “definite and firm belief a mistake has been made.” State v. Wilson, 169 S.W.3d 870, 875 (Mo.App.W.D.2005), quoting State v. Hoyt, 75 S.W.3d 879, 882 (Mo.App.W.D.2002). We will not reverse the ruling if it was plausible in light of the record viewed in its entirety even if we would have weighed the evidence differently. Harris, 305 S.W.3d at 485. We will consider all evidence presented at trial as well as evidence presented at a pre-trial hearing on the motion to suppress. Haslett, 283 S.W.3d at 783. “At trial, the State has the burden of production and persuasion to show by a preponderance of the evidence that a defendant's motion to suppress should be overruled.” Harris, 305 S.W.3d at 485. When “the issue to be decided involves the constitutional protection against forced self-incrimination, our review of the trial court's ruling is a two-part inquiry: we defer to the trial court's determinations of witness credibility and findings of fact, but consider the court's conclusions of law de novo.” State v. Tally, 153 S.W.3d 888, 892 (Mo.App.S.D.2005).

“To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, the police must terminate their interrogation of an accused in custody if the accused requests the assistance of counsel.” Harris, 305 S.W.3d at 485. The accused must...