State v. Roberts, 56262

• Decision Date: 16 January 1990
• Docket Number: No. 56262,56262
• Citation: 785 S.W.2d 614
• Parties: STATE of Missouri, Respondent, v. Augustus ROBERTS, Appellant.
• Court: Missouri Court of Appeals

Page 614

785 S.W.2d 614

STATE of Missouri, Respondent, v. Augustus ROBERTS, Appellant.

No. 56262.

Missouri Court of Appeals,

Eastern District,

Division Five.

Jan. 16, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Feb. 14, 1990.

Application to Transfer Denied April 17, 1990.

Deborah B. Wafer, Asst. Public Defender, St. Louis, for appellant.

William L. Webster, Atty. Gen., Andrea K. Spillars, Asst. Atty. Gen., Jefferson City, for respondent.

DOWD, Judge.

Defendant appeals his convictions for murder second degree, § 565.021, and armed criminal action, § 571.015, RSMo 1986. Defendant received sentences of thirty and sixty years for the respective crimes to be served concurrently. We affirm.

On the evening of February 29, 1988, appellant and his girl friend, Jewel Bass, became involved in a heated argument at the apartment they shared. Both parties were intoxicated. Ms. Bass informed appellant she was going to get a new boyfriend. Appellant became enraged and stabbed Ms. Bass eleven times with his pocketknife. Appellant then left the apartment to telephone his sister, informing her that he was afraid he had hurt Jewel badly. His sister advised him to return to the apartment, check on Ms. Bass's condition and call the police and an ambulance. Appellant returned to the apartment and checked Ms. Bass's wrist for a pulse. Unable to find one, he again left the apartment and telephoned Eva Willis. He asked Ms. Willis to meet him at a downtown location and to bring beer and cigarettes.

Ms. Willis and appellant walked and drank until they came to the Fourth District Police Station where appellant presented himself to the officer at the desk, stating that he thought he had hurt his girl friend. The officer told him to leave. Appellant left, then returned. Seeing that appellant was becoming agitated and creating a disturbance, the officer called for assistance.

Officer Robinson responded and took appellant by the arm to escort him to a report room with the intention of calming appellant down. On the way, Officer Robinson asked appellant "what was the problem" and appellant responded that he had just killed his girl friend. Upon reaching the room, Officer Robinson conducted a pat-down search of appellant to determine if he was carrying a weapon. He first felt, then removed, a knife from appellant's pants pocket. This pocket knife appeared to have blood on it. The officer also noticed a blood spot on the pants. Both blood samples were later determined to belong to Ms. Bass.

Appellant then offered his keys to Officer Robinson and asked him to check in his apartment to see what he had done. Officer Robinson asked for the apartment number, then gave the keys to Lieutenant Moore. While Lieutenant Moore was present in the room, appellant again stated he had hurt his girl friend. Officer Robinson remained with appellant while other officers examined the apartment. Upon arriving at the apartment, the police discovered the body of Jewel Bass seated upon a couch. Paramedics were called, but were unable to revive her.

Once the police discovered that a murder had been committed, appellant was transferred to the Homicide Division where Detective Banaszek attempted to interview him. When the detective arrived at the interview room, appellant was exceptionally agitated and kept insisting that he did not deserve to live. Appellant requested that the police officers shoot him. After approximately half an hour or forty-five minutes, Detective Banaszek was able to calm down appellant and then read him his Miranda rights. At this point, an interview was conducted and appellant related the events surrounding the killing. When asked if he would like to make a recorded statement, appellant requested an attorney. After speaking to a public defender, appellant declined to comment further.

Appellant was charged with murder first degree and armed criminal action. At trial, he pleaded not guilty and claimed that he blacked out after Ms. Bass stated she would find a new boy friend and slapped him. He said he did not remember stabbing her, but gave an account of the other events of the evening. The jury found appellant guilty of murder second degree and armed criminal action.

Appellant's first two points on appeal concern claims of error with the trial court's ruling on two motions to suppress: a motion to suppress statements made by appellant to the police and a motion to suppress the pocket knife and bloodstained pants. The trial judge conducted a pre-trial hearing on both motions during which Officers Robinson and Banaszek testified. The judge denied both motions.

Appellant's first point on appeal claims the trial court erred in admitting the testimony of Officers Robinson, Moore, and Banaszek concerning incriminating statements appellant made. He claims no probable cause for arrest existed when Officer Robinson escorted him to the report room and that he was in custody at that time. Thus, appellant argues all evidence subsequently elicited was tainted. Appellant further states that even if this were not true, the Miranda warnings were given so late as to be meaningless, again tainting all evidence.

Appellant's argument ignores the following language in Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966):

Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.... There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime.... Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.

The Eleventh Circuit Court of Appeals utilized this language to affirm a conviction in Sullivan v. Alabama, 666 F.2d 478 (11th Cir.1982). In that case, the obviously upset defendant voluntarily entered the county jail mumbling that he had done something "terrible." Unable to elicit any coherent information, the front desk officer called another officer who took defendant into his office and engaged him in general conversation. The defendant then asked the detective to lock him up. The detective asked further questions, causing defendant to disclose facts about his personal life and to make the statement that something had happened to his ex-wife. At this point, the officer gave defendant his Miranda rights, but did not ask him to sign a waiver or ask him if he understood his rights. Defendant then gave a full account of the murder. Other police officers "kept an eye on" defendant while the questioning officer left to investigate the crime scene. Defendant was subsequently arrested.

The appellate court noted that there was no error in admitting the pre-Miranda statements because they were voluntary and thus Miranda did not apply. Id. 384 U.S. at 482, 86 S.Ct. at 1632. Similarly Miranda did not apply to the statements made in the office because they "were voluntary and not the product of a custodial interrogation." Id. The court characterized the initial questioning as "merely an attempt to investigate and probe the situation" and stated that the defendant remained at the station of his own accord and freely answered the questions. Id. The statements made after the incomplete Miranda warning were likewise admissible because no custodial interrogation ever materialized so there was no need for a Miranda warning. Id. at 483, 86 S.Ct. at 1632.

In the case at bar, all of appellant's statements prior to the Miranda warning were clearly voluntary and thus admissible. In addition, the inquiry prior to appellant's transfer to the Homicide Division was, as in Sullivan, merely an attempt to investigate the situation. The Miranda warning came before any custodial interrogation began and thus was not given too late. The fact that appellant was in the homicide interview room for up to forty-five minutes prior to the warning does not invalidate the subsequent confession since it came before the custodial interrogation and because the time was spent in calming appellant to a state of mind where he could understand the warnings and make a coherent statement. We also note that appellant's testimony at trial was very similar to the objected statements. Consequently, any error in admitting the officers' statements was cured by defendant's confirmation of the statements. State v. Tettamble, 720 S.W.2d 741, 743 (Mo.App.1986).

Appellant's second point is that the court erred in admitting the knife and bloodstained clothing into evidence because the items were the fruit of an illegal detention. He claims the search of his person was unjustified because there was no probable cause to arrest him. The trial court indicated it would allow the...