State v. Reese
| Decision Date | 31 July 1990 |
| Docket Number | No. 70555,70555 |
| Citation | 795 S.W.2d 69 |
| Parties | STATE of Missouri, Respondent, v. Donald E. REESE, Appellant. |
| Court | Missouri Supreme Court |
Henry B. Robertson, St. Louis, for appellant.
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
The defendant confessed to the killing of four men at a shooting range and to taking the wallets of three of them. He was tried in Jefferson County on change of venue
from Saline County on two counts of first degree murder, found guilty on both, and sentenced to death in accordance with the jury's verdict. This consolidated appeal is from the judgment and sentence, and also from the denial of 29.15 relief. The defendant does not challenge the sufficiency of the evidence, but raises numerous procedural points. We affirm.
The defendant signed a written confession, in which he revealed the location of the victims' wallets and of the murder weapon. He moved before trial to suppress the confession, contending that it was involuntary, and also that it was the result of unlawful interrogation. He also sought to suppress the wallets and the weapon as evidence, under the "fruit of the poisonous tree" doctrine. 1 The trial judge overruled the motions in a detailed opinion containing findings, conclusions, and order, which we adopt and, with editing, append to this opinion.
The bodies were discovered at approximately 4:15 p.m. on Tuesday, June 9, 1986 at the Marshall Junction Wildlife Reserve shooting range. The victims had been dead a matter of hours. The investigating officers found that the defendant had purchased ammunition of the kind used for the killings. Beginning Saturday, June 13, they undertook a series of interviews with him and conducted a consensual search of his home. On Monday morning June 15, he apparently called a local lawyer to ask what might be done to keep the officers from harassing him, and the lawyer suggested that he employ someone with more experience in the criminal law. There is no indication that he made any further attempts at hiring private counsel. Up to this time he had not been detained, was given no warnings, and made no incriminating statements.
The defendant was arrested about 2:00 p.m. that same day. There is no claim that the arrest was unlawful. He asked the officers whether he should hire a lawyer and was told that they could not advise him about this, but that a lawyer would be furnished if he wanted one. He answered, "forget it." He was then read his Miranda rights. He said he understood his rights, signed a written waiver, and was willing to talk, and was questioned from 3:15 to 6:00 p.m. He talked freely, denying participation in the crime.
Shortly after 10:00 p.m. that same evening he was arraigned before Associate Circuit Judge Rick Wilson at the Saline County Courthouse on a complaint charging multiple counts of first degree murder, armed criminal action and robbery. The judge advised him, pursuant to our Rule 22.07(b), of the felonies charged, his right to retain counsel, his right to request the assignment of counsel if he could not afford a lawyer, and his right to remain silent. He said that he did not think he would be able to afford a lawyer, and was told that forms for requesting appointment of counsel were available at the jail. He did not suggest to the judge or the officers that he wanted an attorney. The judge set the preliminary hearing for Thursday, June 18.
The next morning the officers sought to interview him in a room in the sheriff's office next to the jail. They advised him of his Miranda rights and he signed another written waiver form. When an officer offered to telephone an attorney for him he said, "I didn't do it and I don't need an attorney and I don't want one." He said that he had no lawyer for his pending divorce suit.
A deputy sheriff then told him that "you have to have a lawyer at the preliminary hearing" and that policy required him to fill out a form the deputy tendered to determine whether he was financially eligible for the public defender's services. The defendant completed the form, checking "yes" next to the question, "Are you requesting that the public defender be provided as your lawyer?" He then talked with the officers for about an hour and Interviewing resumed about 2:30 p.m. Sheriff Darnell told the defendant that he understood that he had been read his Miranda rights, understood them, and had signed a waiver. The defendant confirmed that he understood these rights and was willing to waive them. During the course of the interview he was visited by his wife, at her request, and by his son. At about 6:00 p.m. the appellant began giving a statement admitting that he killed the four men. The statement was reduced to writing and signed at about 8:20 p.m. It contained an express detailing of the Miranda warnings and a further waiver of the rights stated in the warning.
fifteen minutes about the murders, persisting in his denials and saying that he did not need a lawyer. When told some other officers wanted to talk with him after lunch, he responded that that would be "fine" and that he was willing to talk to them.
The trial court found that the defendant was fully advised of his Miranda rights, that he understood them, and that his waiver and his statement to the officers was voluntary. There is no indication of overbearing conduct during the interrogation. The findings are amply supported by the evidence.
The fifth amendment guarantees a person who is held in custody as a suspect the right to have an attorney present during interrogation. The detainee must be advised of this right and must be informed that an attorney will be appointed for him if he is unable to afford one. If an attorney is requested, questioning must cease. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981), holds that when a suspect in custody has requested an attorney the police may not thereafter inaugurate further questioning, and that a statement obtained by this further questioning may not be received in evidence even though the defendant executes knowing and express waivers of his right to counsel. The Court said that an accused person in custody
having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him.
The Edwards holding was refined in Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). There the court held that the first inquiry must be as to whether the accused actually invoked his right to counsel. If the answer to this inquiry is affirmative, then the police may not initiate further questioning. The principal holding of the case is that, once a sufficient request for counsel is made, the accused's subsequent declarations may not be received to show that the initial request was ambiguous. But Edwards and Smith rights attach only if the defendant indicates a desire for the assistance of counsel in his dealings with the police. On this issue the trial court found as follows:
the record is quite clear that defendant Reese did not feel a need for legal assistance during his questioning by the officers, and that he did not ask to deal with police only through counsel.
This finding is amply supported by the evidence. Even though the defendant spoke to a lawyer and discussed the subject of obtaining a lawyer with the police, he was well aware of his rights and he expressly waived them. We find no violation of his fifth amendment right to counsel.
The sixth amendment confers a right to counsel at every "meaningful" stage in the proceedings. Although the defendant may have retained counsel at "arraignment" pursuant to Rule 22.07, the principal purposes of this initial hearing are to determine whether a person arrested without a warrant may be held beyond the 20-hour period specified in Rule 22.06, and to fix the amount of the bond for release, if bond is appropriate. The judge must advise the defendant of the right to counsel, and is directed to proceed with the preliminary examination within a "reasonable time," but there is no suggestion in the rules, and no requirement, that counsel must be provided at the arraignment. There must be immediate decisions about further detention and bail.
The defendant argues that Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1985) applies. The facts are distinguishable because, there, the defendant made an explicit request for counsel when he was arraigned and a law firm was appointed to represent him, even though he was not informed of the appointment. That Jackson does not stand for the proposition that the police may not inaugurate interrogation, once the sixth amendment right to counsel arises, is shown by Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988), in which a defendant was arrested after he had been indicted, but had neither asked for a lawyer nor had one appointed for him. The Court held that the police could institute questioning and, provided that the Miranda requirements were observed, could then proceed to take a voluntary statement.
We must now consider the effect of the form which the defendant completed and signed at the jail on the morning of June 16 in the light of these cases. The trial court found as follows:
The public defender form was not directed to the officer and did not interject ambiguity into the clear unequivocal assertions of the defendant, some made only moments before the form was filled out. Even if we assume the form in question was a request for counsel it is equally clear that such request was that an attorney be provided for him in the future, at his trial or at the earliest the preliminary hearing, and not in the questioning which was taking place...
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