State v. Phillips, WD

• Decision Date: 13 March 1984
• Docket Number: No. WD,WD
• Citation: 670 S.W.2d 28
• Parties: STATE of Missouri, Respondent, v. Aaron DeWayne PHILLIPS, Appellant. 34379.
• Court: Missouri Court of Appeals

Page 28

670 S.W.2d 28

STATE of Missouri, Respondent, v. Aaron DeWayne PHILLIPS, Appellant.

No. WD 34379.

Missouri Court of Appeals Western District.

March 13, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

May 1, 1984.

James W. Fletcher, Public Defender, Sean D. O'Brien, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before PRITCHARD, P.J., and SHANGLER and BERREY, JJ.

PRITCHARD, Presiding Judge.

By the verdict of a jury, appellant was convicted of forcible rape, forcible sodomy, first degree robbery, and first degree assault. He was sentenced for these offenses, respectively, to imprisonment for life, 100 years, 20 years and 20 years, to run consecutively.

One issue is whether appellant's incriminating statements, some oral as made to Detective Paul MacDougall, and some being videotaped, should have been suppressed as not being voluntary. There was no evidence presented to the jury as to appellant's oral confession to MacDougall, but only the videotaped confession was shown to it.

MacDougall first contacted appellant at about 9:00 p.m., on February 11, 1982, in the interrogation room of the police headquarters, where the two were alone. MacDougall read appellant his Miranda rights off of a rights waiver form and asked him if he understood his rights. Appellant stated that he did understand them, but when he was asked to sign the waiver form he refused to do so, saying, according to MacDougall's report, that every time he signs something he ends up in jail. MacDougall did not offer to break off the interrogation, to get appellant an attorney, or to clarify what his rights were, but appellant then volunteered to answer questions, and MacDougall orally interrogated him for about an hour and ten minutes, and shortly afterwards, he went back to his office and wrote down what had occurred to the best of his memory. Appellant told MacDougall basically the same things in his oral statement as he did in the later videotaped statement, but not in as much detail.

Appellant's Point I is divided into two parts. The first part is that the trial court erred in denying his motion to suppress the oral confession given to MacDougall because he refused to sign the waiver of rights form, saying that every time he signs something he ends up in jail. Appellant says that his refusal and statement was a clear indication of his belief that without a signed waiver, a statement could not be used against him in a court of law, and that belief precluded him from making a knowing, intelligent waiver of his Fifth Amendment rights.

Here the record shows that appellant was orally informed of his Miranda rights by Detective MacDougall prior to being asked to sign the form. Thereafter, appellant indicated a willingness to be questioned. In North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979), it was held that there is no constitutional mandate for a per se rule stipulating that an express written or oral waiver is necessary to sustain the state's burden of proof to show a suspect's waiver of his rights. In State v. Groves, 646 S.W.2d 82, 85 (Mo. banc 1983), it was said, "It has been repeatedly held that a defendant who refuses to sign a written waiver may nonetheless voluntarily waive the exercise of his Miranda rights by orally indicating his willingness to cooperate with the police questioning. [Citing U.S. v. Zamarripa, 544 F.2d 978 (8th Cir.1976) cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977).]" See also State v. Clark, 592 S.W.2d 709, 715-716 (Mo. banc 1979), cert. denied, 449 U.S. 847, 101 S.Ct. 132, 66 L.Ed.2d 57 (1980); State v. Urhahn, 621 S.W.2d 928, 931 (Mo.App.1981), and cases cited and quoted.

At the conclusion of the oral interrogation, appellant was asked by MacDougall if he wished to talk to him further and on videotape with a television, and appellant said he would like that. This occurred about 10:15 p.m., and they went to the videotape room on the second floor of Police Headquarters. The videotape transcript of that proceedings shows this: "Det. MacDougall: I'm Paul MacDougall, assigned to the Kansas City, Missouri Police Department, Sex Crime Unit. This is the Kansas City, Missouri Police Department Video Taped Statement of one AARON D. PHILLIPS, being taken in regards to an offense that was committed at 3628 Warwick on the sixth of February, 1982. Statement is being conducted in the Investigations Bureau Video Room, second floor. Police Headquarters, 1125 Locust, Kansas City, Missouri. Okay, AARON, you realize you have been arrested for the rape ... AARON PHILLIPS: Yes, sir. DET. MacDOUGALL: of a lady at 3628 Warwick on the sixth of February. Okay, if you would, I want you to read aloud to me, these two paragraphs. Read it out loud to me. AARON PHILLIPS: I'm speechless. DET. MacDOUGALL: You're speechless. Okay, take a minute and gather your thoughts. Okay, would you like for me to read it to you? AARON PHILLIPS: Yes. DET. MacDOUGALL: Okay. Prior to any questioning, I have been advised of my rights to remain silent, that anything I say can and will be used against me in a court of law. I have the right to consult with a lawyer, and have a lawyer present with me during questioning, and if I can't afford a lawyer, one will be appointed for me at no cost, prior to questioning. I have also been told that I can stop making a statement at any time and I understand all of the above and I am willing to talk to you. No promises or threats have been made against me. You understand everything I said? AARON PHILLIPS: Umuh (yes). DET. MacDOUGALL: Okay. You do understand your rights. Is that correct? AARON PHILLIPS: I understand my rights. DET. MacDOUGALL: Okay. You also understand that this statement is being videotaped? AARON PHILLIPS: Yes. DET. MacDOUGALL: And the camera has been running since we've sat in here? AARON PHILLIPS: Uh, yes. DET. MacDOUGALL: Okay. You understand all of that? AARON PHILLIPS: Yes. DET. MacDOUGALL: Okay. You want to tell me who you are?" Appellant then proceeded to confess to participating in the rape.

MacDougall testified that when he offered appellant a moment to gather his thoughts, he did not actually take any appreciable time to do so; MacDougall did not break off or offer to break off the interrogation when appellant said, "I'm speechless", or try to find out what he meant, or to allow him to talk to an attorney or to offer to call one for him, but continued the interrogation. On cross-examination (at the pre-trial hearing) MacDougall testified that he did not know appellant was in special education in high school or that he was mentally retarded. [There was no evidence of those facts, but there was evidence that appellant had completed the twelfth grade.] MacDougall further testified that appellant never asked him to call an attorney, to break off the interrogations, or to stop it. He made no promises or threats to induce appellant to make the videotaped statement, and he was unarmed during the interrogations. The videotaping procedure lasted...