State v. Phillips

• Decision Date: 13 March 1978
• Docket Number: No. 59379,59379
• Citation: State v. Phillips, 563 S.W.2d 47 (Mo. 1978)
• Parties: STATE of Missouri, Respondent, v. Kim Eugene PHILLIPS, Appellant.
• Court: Missouri Supreme Court

Page 47

563 S.W.2d 47

STATE of Missouri, Respondent, v. Kim Eugene PHILLIPS, Appellant.

No. 59379.

Supreme Court of Missouri, En Banc.

March 13, 1978.

Rehearing Denied April 10, 1978.

Adam B. Fischer, Durley, Keating & Fischer, Sedalia, for appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Neil MacFarlane, Asst. Attys. Gen., Jefferson City, for respondent.

HENLEY, Judge.

Kim Eugene Phillips (defendant), charged with and convicted of second degree murder, was sentenced in accordance with a jury verdict to 50 years in the custody of the Department of Corrections. On appeal to the Court of Appeals, Kansas City District, the judgment was reversed for error in admitting in evidence a written statement given by defendant to police officers, and the case was remanded for a new trial. We ordered the case transferred to this court on application of the State. We affirm.

The body of Karen Jones was found in her Sedalia apartment August 13, 1973. Her death was caused by strangulation.

Defendant, a 21 year old former Air Force enlistee, was among acquaintances of the dead woman questioned by police regarding their whereabouts the evening before discovery of the body. Defendant was a native of the state of California and graduated from Pacifica, California high school in 1970. He had been stationed at Whiteman Air Force Base, but was living in Sedalia at the time of the crime. He went to police headquarters of his own volition on the morning of August 15, 1973, where he was questioned by James Donley, a deputy sheriff. As a result of this questioning he agreed to take a polygraph test administered the next day (August 16) at Troop A headquarters of the State Highway Patrol in Lee's Summit. The test was given by Merlin Buesing, a member of the State Highway Patrol. During a discussion of the test results defendant's response to a question tended to incriminate him. Deputy Donley, who had driven defendant to Lee's Summit that morning, observed the polygraph test and heard this discussion from an adjoining room. Later that day, between 6:30 and 7:00 p. m., at the Pettis county courthouse in Sedalia, defendant, in response to questions by Emmett Fairfax, Sheriff of Pettis county, made a statement confessing that he killed Karen Jones. This statement was reduced to writing, signed by defendant, and witnessed by Sheriff Fairfax and Patrolman Buesing.

Defendant moved to suppress all evidence of oral and written statements made by him to or within the hearing of the police officers regarding the killing of Karen Jones on the ground they were not made voluntarily, because he was not fully advised of or accorded rights guaranteed him by the federal and state constitutions ¹ in that (1) he invoked but was denied the rights to remain silent and to have counsel present during his interrogation by police; (2) he was misled and tricked into making an incriminating statement by erroneous advice given him by Patrolman Buesing.

Two-thirds of the approximately 300 page transcript of the record is made up of evidence presented at the pretrial hearing of the motion. The motion to suppress was overruled. At a trial before a jury his oral admission to Patrolman Buesing at Lee's Summit and his written confession were admitted in evidence over his objections.

James Donley, a deputy sheriff of Lafayette county and a member of the Metro Squad with headquarters at the courthouse in Sedalia, testified that defendant came to the Pettis county courthouse during the morning of August 15, 1973, to talk to someone regarding the Karen Jones homicide; that he was assigned to interview defendant and they went to a room adjacent to the courtroom for that purpose; that before interviewing defendant he "warned him of his rights" by reading to him from a card containing the Miranda warnings; that after informing defendant of his rights, he asked him whether he understood those rights and defendant replied that he did; that he also asked whether he wished "to talk to us now" and defendant said "he wanted to tell us or help us on the case if he could"; that he listened to what defendant had to say and at the end of the interview they agreed that defendant would take a polygraph test the next morning in Lee's Summit; that defendant returned to the courthouse the next morning and they left for Lee's Summit in the Deputy's patrol car; that they did not discuss the Jones homicide case enroute.

Deputy Donley further testified that on arrival at Patrol Headquarters he introduced defendant to Corporal Merlin Buesing; that defendant and Corporal Buesing went into the polygraph room; that he went into an adjoining room from which he could see and hear the polygraph test without being seen or heard; that Corporal Buesing had a printed "waiver" form which had been prepared for the signature of a person who voluntarily submitted to a polygraph test; that the Miranda "rights" were printed on this form; that Corporal Buesing read and explained the rights to defendant; that defendant said he understood his rights and signed the waiver; that Corporal Buesing explained to defendant how the polygraph machine worked and then began the test; that near the end of the test, defendant said to Corporal Buesing that "he (Buesing) didn't have to look any farther, he had his man * * *"; that defendant said essentially the same thing to him (Donley) just before they stopped at a restaurant in Lee's Summit enroute back to Sedalia late that afternoon.

Corporal Buesing testified that he and defendant read together and discussed the waiver form and defendant's "rights," as defined by Miranda, before the polygraph test was given; that he explained and they also discussed the polygraph procedure; that during their discussion he placed the waiver form in front of defendant for his signature; that defendant said "he didn't know whether he should have an attorney or not"; that he (Buesing) "told him that this, he would have to decide before we went ahead"; that defendant then signed the waiver form, dated it, and wrote the hour of 11:30 or 11:45 a. m. next to the date, indicating and saying that he wanted to go ahead with the test; that he then gave defendant the polygraph test, which took about an hour or an hour and a half; that after the polygraph test was completed he (defendant) indicated to me that there was more he could tell me about the case, so "I asked him directly if we should be looking for other persons * * * and he indicated that we should not"; that at this point defendant mentioned that "he didn't know if he should talk to an attorney or not"; that he reminded defendant that this was one of his rights and it was for him to decide whether he should; that defendant "thought a little bit and then we went ahead with our discussion"; that defendant did not at any time ask to see an attorney; that his attitude as to whether he wanted an attorney present was: "I don't know," I am "considering" the question.

Corporal Buesing further testified that at some time during the day, possibly near the end of their discussions, defendant mentioned that he had a friend in Sedalia named Greg Woods, who knew some good lawyers, and that "he might want to talk to Greg Woods about talking to a lawyer"; that defendant asked him to make arrangements for him to talk to Greg Woods; that he talked to someone (not the sheriff) at the Metro Squad headquarters and told that person that defendant had "indicated we didn't * * * need to look for another person involved in this thing"; that he also told this person that defendant had said he might want to talk to Greg Woods and had indicated he "might want to talk to a lawyer"; that he asked that the Metro Squad have Greg Woods available, if possible, at Squad headquarters when they (Deputy Donley, defendant, and Corporal Buesing) returned to Sedalia that evening.

Sheriff Fairfax testified that during the afternoon of August 16 he received information through the Metro Squad that defendant, Corporal Buesing and Deputy Donley were enroute to Sedalia and that defendant "may want to talk to a lawyer"; that there was no mention to him that day by anyone, including defendant, that defendant wanted to talk to a Greg Woods; that he met defendant in a jury room of the Pettis county courthouse sometime between 6:30 and 7:00 p.m. on August 16, 1973; that he took a statement from defendant after first informing him of his Miranda rights by reading them from a card; that after explaining these rights to defendant he asked him whether he understood his rights; that defendant responded that he did; that after defendant said he understood, he (the sheriff) asked him whether he wished to talk to us now.

Defendant's response to this question, according to the sheriff, and the next two questions and answers were as follows:

"A. He responded.....he said he didn't know whether he should talk to us at this time with.....without before he.....or without talking to a lawyer, some words to that affect. He said he didn't know whether he should talk to us without talking to a lawyer.

"Q. What did you tell him, if anything, at that time?

"A. I told him that that was his right that he could have counsel, he could talk to a lawyer at any time that he desired and that further that he could also waive that right if he desired to talk to us about the Karen Jones murder.

"Q. What did he do at that time?

"A. Well he said he guessed that he would, and went on to talk to us about the afternoon of August the 12th and 13th of 1973 and about Karen Jones."

Sheriff Fairfax further testified that as defendant talked of what occurred at Karen Jones' apartment on August 12 and 13 and how he killed her, he (the sheriff) typed in narrative form the two-page statement which was admitted in evidence; that after the statement was finished, he went over it with defendant; that defendant made corrections by striking through words and initialing the parts he had stricken; that defendan...