State v. Oldham

• Decision Date: 31 January 1977
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Respondent, v. Delbert Leroy OLDHAM, Appellant. 28406.
• Court: Missouri Court of Appeals

Page 766

546 S.W.2d 766

STATE of Missouri, Respondent, v. Delbert Leroy OLDHAM, Appellant.

No. KCD 28406.

Missouri Court of Appeals, Kansas City District.

Jan. 31, 1977.

James R. Bickel, Nevada, for appellant.

John C. danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Before WASSERSTROM, P.J., and SOMERVILLE and TURNAGE, JJ.

WASSERSTROM, Presiding Judge.

The jury convicted defendant of second degree burglary and burglarious stealing but was unable to agree upon punishment. The trial court therefore sentenced defendant to four years imprisonment on each charge with the sentences running concurrently, from which defendant appeals.

The record yields the following facts. Mrs. Sadie Ketner, a widow, owned a home in Nevada, Missouri, which was broken into on June 25--June 26, 1975. Mrs. Ketner was in Florida at the time of the burglary, having left her home on June 15, 1975. Two of her neighbors testified that on June 26, 1975, they discovered that a rear window pane in Mrs. Ketner's house was broken. They saw a storm window and screen lying against the rear of her house, broken glass was in the yard, and they found the front door of the house open.

Mrs. Ketner testified that when she left for Florida all her storm windows were secured on her house, and her front door was locked. When she returned from Florida on July 8, 1975, she found missing from her home a flashlight, two pairs of binoculars, two radios, her deceased husband's billfold, several rings, an electric fan, and personal checks.

The police returned to Mrs. Ketner most of the above property which she positively identified as her own and as having been in her home when she left for Florida. The police found the property in the trunk of a car registered to a Phil Gilbert, and to which they were directed by Nadine Gilbert. When Nadine Gilbert took the police to the car, she was in the custody of the police for investigation of the burglary of the Ketner house.

Defendant was arrested by Vernon County Deputy Sheriff Leon Dowdy on June 28, 1975, at a motel near Nevada, Missouri. Police Officer Larry Moore of Nevada, Missouri, accompanied Dowdy to the motel. While there, Dowdy also arrested Phil Gilbert. At the patrol car in the motel parking lot, the officers read the arrestees their Miranda rights. Officer Dowdy testified that Phil Gilbert and defendant talked between themselves while they were being driven to the Nevada Police Station. Gilbert indicated to the arresting officers that he and defendant shared the motel room where defendant was arrested.

Officer Moore interrogated defendant while at the police station. He testified that before beginning questioning he again read to the defendant his Miranda rights and that defendant indicated that he understood those rights. The officer stated that the defendant did not indicate to him that he wished to speak to an attorney. Officer Moore also filled out part of a 'Waiver Form' which states that the signer of the form has read his rights; that he understands them; that he is willing to speak to the police and answer questions; that he does not desire assistance of counsel; and that no threats or coercion has been used against him. Defendant signed the waiver form. Officer Moore interrogated him after he signed the form.

Initially the defendant denied having anything to do with the burglary. Officer Moore told the defendant that blood had been found near the broken window at the Ketner house. Officer Moore testified that he found a small cut near the wrist of the defendant. Officer Moore told defendant that fingerprints had been taken at the Ketner house. Officer Moore testified that he said to the defendant, 'Most likely, if you are the one that done it, it will come back to you.' The defendant finally told Officer Moore verbally that he left Kansas City by car on Wednesday night of that week with Phil Gilbert, Nadine Gilbert and Rosella Grube; that the foursome arrived in Nevada after much drinking and went to a park; that while there in the park defendant told the others that he would break into the house across the street; and that he then went across the street and broke into the house, taking items from it. Mrs. Ketner's house is across a street from a park. Defendant also told the officer that he broke into the house while drunk and that the cut on his wrist was from the burglary; that he took personal checks from a red box in the back bedroom of the house; and he also described to Moore several other items which he took from the house. These items, also described on his written statement, match identically the items which the police recovered from Phil Gilbert's car and which items Mrs. Ketner identified as hers. The written statement by defendant is virtually identical to the description of Moore of the verbal statements made by defendant. The defendant wrote the statement immediately after making the verbal statement.

Prior to trial, defendant moved the court to suppress both the written and verbal statements. At the hearing on the motion to suppress, defendant testified that before he made any statement he requested from Officer Dowdy assistance of counsel, but Dowdy responded that he could not obtain an attorney for the defendant. He further stated that he did not read 'the fine print' on the form on which he wrote the confession. The only other witness at the hearing on the motion was Officer Moore, who testified to the facts of the interrogation as outlined above. After hearing this evidence, the court overruled the motion, stating: 'The Court feels that the State has sustained its burden of proof as to the voluntariness of the statement.'

I.

Defendant first complains that the trial court erred in overruling his motion to suppress contending that his statements were given after he requested an attorney and had been denied the opportunity to consult with counsel. In support of this contention, defendant relies upon his own testimony given at the hearing on the motion to suppress in which he testified that he requested assistance of counsel from Officer Dowdy who stated that an attorney could not be appointed at that time.

Defendant's testimony in this respect could properly be considered by the trial court together with State's Exhibit No. 9, a signed Waiver of Rights, in which defendant specifically stated, 'I do not want a lawyer at this time.' In view of that signed statement given immediately before Officer Moore took defendant's statement and just after defendant claims he asked Officer Dowdy for assistance of a lawyer, the trial court could reasonably disbelieve defendant's testimony to the effect that he asked Dowdy for legal help. The court's ruling on the motion to suppress, that 'the State has sustained its burden of proof as to the voluntariness of the statement,' is therefore supported by the evidence taken at that time.

Moreover, before defendant's statement was introduced in evidence, Officer Dowdy took the stand at the jury trial and in his testimony he flatly denied that any request to him had ever been made by defendant for legal assistance. When the court ruled on defendant's trial objection to admission of his statement, Dowdy's testimony was before the court and further supported the court's ruling on that objection. See State v. Howell, 524 S.W.2d 11, 19 (Mo. banc 1975). The trial court's belief in credibility of witnesses is binding upon this court. State v. Alewine, 474 S.W.2d 848 (Mo.1971); State v. Hunter, 456 S.W.2d 314 (Mo.1970).

A part of the argument portion of defendant's brief varies from the point as stated to a degree making it doubtful whether this additional argument is properly preserved for attention. The doubt in this respect will be resolved by considering on the merits this additional argument which purports to raise a constitutional issue, thereby eliminating any question of 'plain error.' The additional argument is put in defendant's brief as follows:

'The Court's refusal to consider the testimony previously given by appellant and requiring a repetition of this testimony by appellant at trial, put appellant in an impossible position. The Court stated that if appellant would testify to those facts, the Court would sustain the objection to the introduction of the statements. Thus, for appellant to be able to invoke his constitutional right to counsel, prior to questioning, he would have to give up his equally important constitutional right against self-incrimination by testifying at the trial, at which time he would be subject to cross examination by the State. Appellant submits that it is reversible error to coerce a defendant to choose between one of two constitutionally protected rights.'

Defendant's argument is faulty on two grounds. In the first place, the trial court did not refuse to consider the testimony previously given. With respect to this matter the record shows the following colloquy, which represents the sum total of what defendant relies upon:

'MR. BICKEL: In requesting counsel, further interrogation should have then ceased and failing in that, his constitutional rights were violated.

THE COURT: Is there going to be testimony here--

MR. BICKEL: I am assuming that the hearing Monday is a part of the overall court record, as far...