State v. Pennington
| Citation | 408 S.W.3d 780 |
| Decision Date | 01 October 2013 |
| Docket Number | No. WD 75506.,WD 75506. |
| Parties | STATE of Missouri, Appellant, v. Douglas E. PENNINGTON, Respondent. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Eric G. Zahnd, Prosecuting Attorney, Joseph W. Vanover, Assistant Prosecuting Attorney, Platte City, MO, for Appellant.
Susan L. Hogan, Appellate Defender, Kansas City, MO, for Respondent.
Before Division Two: KAREN KING MITCHELL, Presiding Judge, and THOMAS H. NEWTON and LISA WHITE HARDWICK, Judges.
The State appeals from the circuit court's interlocutory order suppressing oral and written statements made by Douglas Pennington during a police interview. The State argues that the circuit court applied an incorrect legal standard in requiring the State to demonstrate an express waiver of Pennington's rights to remain silent and have counsel present during questioning. In Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 2261, 176 L.Ed.2d 1098 (2010), the United States Supreme Court held that express waivers are not required in order to demonstrate compliance with the prophylactic warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Because the circuit court applied an incorrect legal standard in suppressing the statements, we reverse and remand for further proceedings.
In March 2011, S.M. (Mother) and M.M. (Father) contacted the Riverside Police Department to report that Pennington had committed sexual acts against their minor daughter (Child). The police department was unable to reach Pennington but left a voicemail for him to contact Detective Billy Aaron. In response to the voicemail, Pennington voluntarily went to the police station and was interviewed by Detective Aaron. The entire interview was videotaped, and the recorded interview was later admitted into evidence at the suppression hearing.
At the beginning of the interview, Detective Aaron asked Pennington whether he had ever been to the police station before. Pennington said that he had recently visited the station to file a police report after he was assaulted by a neighbor. Detective Aaron briefly questioned Pennington about the alleged assault (an incident wholly unrelated to Detective Aaron's investigation at issue in this case) and then the following exchange took place:
Detective Aaron: I heard that you keep a pretty close eye on stuff out there and, from time to time, you've given police some good information.
Pennington: Yeah, if anything looks strange going on or anything, I call down here and let 'em know what's going on.
Detective Aaron: Good deal. Here's the situation. When you came down and talked, I'm sure they probably went over this with you the other day, but—our business is protection.
Pennington: Right.
Detective Aaron: We want to protect people's rights—
Pennington: Right.
Detective Aaron:—public safety, et cetera—and certainly yours.
Pennington: Right.
Detective Aaron: So, part of my obligation is to make sure you understand your protections.
Pennington: Right.
Detective Aaron: Okay, so this is some paperwork we go through so we can visit.
Then, after confirming that Pennington had graduated high school and could read and understand English, Detective Aaron handed Pennington a form containing the Miranda warnings and asked him to read it aloud. Pennington complied and read the Miranda form correctly. The final line of the form read: “Each of the above rights has been explained to me and I understand them.” When Pennington finished reading the Miranda form in its entirety, Detective Aaron asked Pennington twice if he understood the rights he had just read aloud, and both times Pennington answered affirmatively. Detective Aaron told Pennington that his signature would further confirm that he understood his rights. Pennington then signed the Miranda form.1
After the form was signed, Detective Aaron engaged Pennington in preliminary conversation about his family and employment. During that conversation, Pennington reported that he was on probation for a felony conviction.
Approximately ten minutes after the Miranda warnings were administered, Detective Aaron turned the conversation to the sexual misconduct allegation reported by Mother and Father. Pennington was aware, before he went to the police station, that Child had made sexual allegations against him. Pennington told Detective Aaron that Mother and her family were his neighbors. He said that Mother asked him to babysit Child and Child's brother for approximately five to six hours on the day of the alleged offense. In response to questions from Detective Aaron, Pennington initially denied the allegations of sexual misconduct, stating, “I know better not to do anything like that 'cause I'm on—I got ten months of my probation left,” and “I did not do a thing like that ... I wouldn't jeopardize my probation.” Then, approximately twenty-four minutes after Detective Aaron first began asking about the alleged offense against Child, Pennington said:
Shortly thereafter, Detective Aaron suggested that Pennington write a letter of apology to Mother and Child. Pennington said, “I want to apologize to [Mother] and [Child] and, so I can go my, my own way and they can go their own way.” Detective Aaron replied, “Okay, I'll give you that chance,” and handed Pennington a form titled “Voluntary Written Statement.” Detective Aaron left Pennington alone in the interview room while Pennington wrote the following letter on the form:
Dear [Mother] I am sorry for Touching your Dauhter In The private part of her Body and I Like To say That I am very sorry for doing That I Like to Ask for your giviness and I ask the Lord To forgiviness And I hope you can for give me An Let me go on with my Life and you go on with yours Please forgive me. [2]
After Pennington finished writing the letter and Detective Aaron returned to the interview room, Pennington admitted to inserting his finger into Child's vagina “a little bit.” Pennington indicated on his hand how far he put his finger into Child's vagina. Pennington confirmed that he asked Child “how she liked it.” Pennington also admitted that his penis was erect during the incident and that he tried to get Child to touch his erection, but that Child “pulled her hand away before it got that far.” Detective Aaron then ended the interview, the entirety of which lasted approximately one hour and ten minutes.
The State subsequently charged Pennington with one count of first-degree statutory sodomy, under section 566.062, and one count of attempted statutory sodomy, under section 566.062.3 Count I alleged that Pennington touched Child's genitals with his hand. Count II alleged that Pennington took a substantial step towards the commission of first-degree statutory sodomy by taking “[Child's] hand and mov[ing] it towards his genitals.”
Pennington moved to suppress the oral and written statements he made to Detective Aaron, asserting that he did not knowingly and intelligently waive his Miranda rights. At a hearing on the motion, Detective Aaron testified that at no time during the videotaped interview did he get the sense that Pennington did not understand what he was being asked. On cross-examination, Pennington's counsel asked Detective Aaron whether, during the questioning, anything was said about a waiver and whether Pennington was expressly asked if he waived his rights as articulated in the Miranda warning. Detective Aaron acknowledged that the Miranda form did not mention a waiver of rights or giving up rights. Detective Aaron also acknowledged that he did not ask Pennington whether he was waiving any of his rights, including his right to remain silent. Pennington's counsel argued to the circuit court that it was his “position that under Miranda there must be a clear waiver.” At the suppression hearing, neither attorney addressed Berghuis v. Thompkins.
After the hearing, the circuit court granted Pennington's motion to suppress. In its order, the court noted that the Miranda form contained
no “waiver paragraph,” which would state something like “I have read and understand my rights, and with these rights in mind I waive them and willingly make a statement”, “I understand each of these rights and having these rights in mind wish to talk”, “I understand all of these rights and am willing to talk to you and waive these rights”, nor was Defendant Pennington asked by the interrogating detective any of the foregoing.... In his testimony [,] the interrogating detective did not articulate any basis for concluding that Defendant Pennington knowingly waived his Miranda rights and did not ask him if he waived them.
Consequently, the court held that the State failed to establish that Pennington “validly, voluntarily, knowingly, and intelligently waived his Miranda rights.” The State now appeals this interlocutory ruling.
In its sole point on appeal, the State argues that the circuit court erred in granting Pennington's motion to suppress his oral and written statements to Detective Aaron. Specifically, the State asserts that, in finding that Pennington did not knowingly waive his Miranda rights, the circuit court erroneously applied the law by requiring the State to establish an express waiver. We agree.
The issue of whether a defendant validly waived his Miranda rights is one of fact. State v. Sparkling, 363 S.W.3d 46, 51 (Mo.App. W.D.2011). Yet, because the question before this Court is whether the circuit court applied the correct legal standard in determining the waiver issue, we review the circuit court's order de novo. State v. Jones, 384 S.W.3d 357, 363 (Mo.App. S.D.2012).
The State bears the burden of proving, by a preponderance of the evidence, that the accused...
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...from which a reasonable person could infer that Watkins knowingly and intelligently waived his Miranda rights. State v. Pennington , 408 S.W.3d 780, 785–86 (Mo. App. W.D. 2013).Moreover, Watkins insisted on speaking with the detectives. He showed no desire to remain silent and never express......
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