State v. Olds

• Decision Date: 12 September 1978
• Docket Number: No. 60365,60365
• Citation: State v. Olds, 569 S.W.2d 745 (Mo. 1978)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John Francis OLDS, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 745

569 S.W.2d 745

STATE of Missouri, Plaintiff-Respondent, v. John Francis OLDS, Defendant-Appellant.

No. 60365.

Supreme Court of Missouri, en banc.

Sept. 12, 1978.

J. Martin Hadican, Clayton, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

RENDLEN, Judge.

In this case, transferred here after opinion in the Court of Appeals, St. Louis District, defendant appeals his conviction on four counts of robbery in the first degree with a dangerous and deadly weapon, § 560.135, RSMo 1969. He was sentenced by the jury to imprisonment for terms of thirty years on each of Counts I and III and to twenty-five years on each of Counts II and IV, which were ordered by the court to run concurrently. Because of error in the admission of testimony concerning defendant's oral confession following his arrest, we reverse and remand.

On the afternoon of April 8, 1975, defendant with two armed accomplices forcibly entered the Clayton home of Mrs. Jerry James and for approximately fifty-five minutes ransacked the house, taking money at gunpoint from the persons there including Mrs. James, her son, the tutor, and the maid. Leaving the four victims bound hand and foot on the floor of the home, the gunmen fled. Abundant testimony placed defendant at the scene and described his part in the crimes.

The following day, acting on apparently reliable information (only a marginal showing thereof appears in the record) two police officers from the City of Clayton, one of whom was Francis Koenig, with an officer from the St. Charles City Police Department and a deputy from the St. Charles Sheriff's Department, arrested defendant and one Paul Killian in St. Peters, Missouri. At the arrest scene, defendant, who had been advised of the charges and been given the Miranda warnings advising him of his constitutional rights, denied involvement in the crime. He was taken to the St. Charles County Sheriff's Office and there questioned; thence to the police station in Clayton where the interrogation continued. It is undisputed that defendant signed a waiver of rights form at about 8:10 p. m. in the St. Louis County Jail following more than two and one-half or four hours of questioning, depending on whether the arrest occurred at 4:00 p. m. as testified by defendant or at approximately 5:30 p. m., the time fixed by the police. Shortly after signing the waiver form, defendant confessed the crimes.

Olds moved to suppress his incriminating statements, the first of which was made immediately after he was taken into custody and while being transported to the St. Charles County Jail. That statement was an off-hand remark concerning his knowledge of the victim's Great Dane dog apparently present at the scene of the crime. The second was a statement or series of admissions made in response to questions concerning the crimes made at the St. Louis County Jail sometime after signing the waiver form at 8:10 p. m. on the day of arrest.

We first consider defendant's contention that the court erred in overruling his motion to suppress and receiving in evidence the testimony of Officer Koenig relative to defendant's statement about the dog. Defendant maintains that statement was the fruit of a warrantless arrest made without probable cause, in violation of his rights under the fourth, fifth and sixth amendments to the United States Constitution as made applicable to states by the fourteenth amendment to the United States Constitution. Because of the sketchy testimony concerning the information on which the officers acted in making the arrest we shall assume arguendo it was without probable cause. As noted above, defendant was arrested in St. Peters, Missouri with one Paul Killian and immediately after receiving the Miranda warnings was driven with Killian to the St. Charles County Jail. During that trip the statement was made. Officer Koenig testified at the suppression hearing to the following circumstances:

Q. . . . could you set the scene for the Court as to who you were talking to and what your conversation was?

A. Yes, sir. We were in Deputy Sheriff Stephen's police car; we were proceeding to the St. Charles County Sheriff's Office. I was talking to the deputy Sheriff in relation to a large Great Dane dog

A. As I was saying, I was talking to the deputy with regard to a Great Dane that was at the residence of the victims in this incident. I mentioned that that dog was huge, that he weighed approximately 200 pounds, and I said, 'But that was the friendliest dog I've ever seen.' At that time Mr. Killian stated, 'That sure was the friendliest dog I've ever seen,' And John Olds agreed with him. (Emphasis ours.)

Q. So at that time then when Mr. Olds spoke up it wasn't in connection with any questions directed to him?

A. No, sir.

Q. It was concerned with a dog that was at the residence that was robbed?

A. Yes, sir.

At trial similar testimony was admitted over defendant's objection. The statement appears to have been made quite voluntarily after defendant had been warned of his right to remain silent and was not in response to any interrogation. By volunteering, defendant waived his right (as to this statement) to remain silent under the fifth amendment of the United States Constitution and art. I, § 19 of the Missouri Constitution, and no violation of Miranda occurred. ¹ See State v. Johnson, 530 S.W.2d 690 (Mo. banc 1975); Boyer v. State, 527 S.W.2d 432 (Mo.App.1975). However, to support his contention defendant would also rely on the fruit of the poisonous tree doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), alleging the violation of his rights under the fourth amendment of the United States Constitution and art. I, § 15 of the Missouri Constitution. Such reliance is misplaced. In holding that an accused's inculpatory statements were inadmissible "fruit" of an illegal arrest, the Court in Wong Sun refused to apply a "but for" test which might have compelled the exclusion of all such statements following an illegal arrest. 371 U.S. at 487-88, 83 S.Ct. 407. Instead the Court stated that admissibility of such statements should rest on a determination of " 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by Exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' " (Emphasis ours.) Id., quoting Maguire, Evidence of Guilt 221 (1959). One of the "sufficiently distinguishable means" of obtaining untainted evidence is through a statement "sufficiently an act of free will to purge the primary taint . . . ." Id. at 486, 83 S.Ct. at 416.

In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), also cited by defendant as authority for his contention, the Court ruled that the giving of Miranda warnings after an Illegal arrest cannot "alone and per se" assure in every case that a suspect's subsequent confession is "sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession." 422 U.S. at 603, 95 S.Ct. at 2261. In Brown, the police had exploited the illegal arrest, after the Miranda warnings had been given, by confronting the defendant with certain information and asking him if he wanted to talk about the crime. The Court had no reason to and did not adopt a "but for" test in considering the taint from an illegal arrest.

We find the officer's statement made in the car when driving to St. Charles concerning the victim's dog does not rise to the level of exploitation of the illegal arrest against which the Wong Sun principle is directed. The statement was not a question addressed to the defendant or his companion. No questioning had yet taken place. Absent exploitation of the illegality, the causal link between defendant's arrest and his statement was sufficiently broken to permit its admission in evidence and we decline defendant's invitation to invoke the "but for" rule similarly refused in Brown and Wong Sun.

As this Court noted in State v. Johnson, 530 S.W.2d 690, 693 (Mo. banc 1975), "The criteria enunciated in Brown v. Illinois, supra, with respect to confessions following an illegal arrest was the law of this state prior to Brown and was articulated and applied in the earlier Johnson case and in State v. Fair, 467 S.W.2d 938, 943 (Mo. banc 1971)."

Finally, the factors suggested by Brown for consideration in determining the extent of the taint must be weighed. Miranda warnings had already been given. The temporal proximity of the statement to the arrest and the absence of intervening circumstances in this case are balanced by the absence of any attempt to exert pressure on the defendant on the way to St. Charles. In short, defendant's inculpatory statements volunteered as an affirmance of the officer's observation concerning the dog was sufficiently an act of free will to purge the alleged primary taint of the arrest and testimony concerning the "dog statement" was properly admitted in evidence.

We turn now to the oral confession elicited at the St. Louis County Police Station. Defendant in his motion to suppress charged the confession (consisting of a series of oral questions and answers), was taken in violation of defendant's federal fourth, fifth and sixth amendment rights, as well as his rights under Mo.Const., art. I, §§ 15, 18(a) and 19. At the suppression hearing defendant testified unequivocally that he told his interrogators in the Sheriff's Office at St. Charles and later in the St. Louis County Police Station prior to signing the waiver form that he wished to remain silent and wanted to contact a lawyer but was told that he must wait until the interrogators were through with their questioning. Defendant admitted that he had been told "I had the right to remain silent and I had a right to...