State v. Royal, 61681

• Court: United States State Supreme Court of Missouri
• Citation: 610 S.W.2d 946
• Docket Number: No. 61681,61681
• Parties: STATE of Missouri, Respondent, v. Phillip A. ROYAL, Appellant.
• Decision Date: 13 January 1981

Page 946

610 S.W.2d 946

STATE of Missouri, Respondent, v. Phillip A. ROYAL, Appellant.

No. 61681.

Supreme Court of Missouri, En Banc.

Jan. 13, 1981.

Rehearing Denied Feb. 9, 1981.

Terry Daley, Public Defender, John D. Wiggins, Asst. Public Defender, Rolla, for appellant.

John Ashcroft, Atty. Gen., S. Francis Baldwin, Asst. Atty. Gen., Jefferson City, for respondent.

MORGAN, Judge.

Appellant was charged by information with capital murder, kidnapping, first degree robbery, stealing a motor vehicle and armed criminal action in connection with the robbery of the Neelyville Branch of the Bank of Poplar Bluff and the abduction and murder of an employee, Tara Lynn Creach. He was convicted of capital murder and sentenced by the jury to life imprisonment without possibility of probation or parole for fifty years. Appeal was made directly to this Court under Art. V, § 3, Mo.Const.

As there is no challenge to the sufficiency of the evidence to support the conviction, only a brief recitation of the facts is required. On the morning of January 13, 1978, the Neelyville Branch was robbed of approximately $33,000 and the employee-teller at that facility was abducted. Witnesses testified that they saw the victim's car containing two passengers, one of whom was the victim, departing from the bank. The description of the car was transmitted to police officers and shortly after receiving the dispatch, Officer Stanley Martin met the victim's car and gave chase. After a high speed chase on icy roads, the car was wrecked. Officer Martin pulled appellant from the car and placed him under arrest. A canvas bag containing a large amount of currency, including some "bait money" was recovered. Appellant was placed in Officer Martin's car and Deputy Larry Woods read the Miranda warnings to him, whereupon he was questioned about the victim's whereabouts. At this time, or shortly thereafter at the Sheriff's office, appellant made statements leading the police to a remote area of Butler County known as Panhandler's Park where Tara Lynn Creach's body was found. She had been shot three times with a .22 caliber weapon.

In his first of four points of error, appellant claims that the trial court erred in overruling his motion to suppress statements allegedly taken in violation of his fifth amendment rights. He testified at the suppression hearing that he twice asked to be provided legal counsel; that he was told that counsel would be appointed for his arraignment; and, that the police did not cease the interrogations that resulted in his making the statements he sought to suppress.

Appellant contends that the conduct of interrogating officers violated his rights as enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda states that if in-custody interrogation continues after a defendant has invoked his right to remain silent and to legal assistance, the burden falls upon the State to prove that he knowingly and intelligently waived those rights. Id. at 475, 86 S.Ct. at 1628; State v. Higgins, 592 S.W.2d 151, 158 (Mo. banc 1979); State v. Olds, 569 S.W.2d 745, 751 (Mo. banc 1978). It is clear that the invocation of those rights does not prevent police officers from resuming interrogations as long as a defendant's right to cut off questioning is scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); State v. Blevins, 581 S.W.2d 449 (Mo.App.1979).

In this case, appellant timely filed his motion to suppress statements detailing certain elements of the crimes charged. The motion was based upon his allegation that he twice requested legal assistance which was not immediately forthcoming. At the conclusion of the suppression hearing, the trial court entered its order suppressing all statements made prior to the giving of Miranda warnings, but did not specifically articulate the reasons for overruling appellant's motion to suppress statements made while incarcerated. Implicit in the trial court's silence and admission of the statements at trial is the conclusion that appellant's testimony regarding the alleged requests for an attorney lacked credibility and that the statements were voluntarily given. While disposing of such a motion in this manner is not as clear as making definitive findings based on the evidence adduced at the suppression hearing, there is nothing inherently improper in so doing.

At first blush, this conclusion might appear to be in conflict with language found in State v. Olds, supra, at 751, wherein we said:

... in the absence of the trial court's finding that it disbelieved defendant's testimony regarding requests for an attorney and to remain silent, we cannot find that the record supports the finding that the waiver and subsequent statements were voluntary.

This language might be understood to require a trial court to include in its ruling on motions to suppress its evaluation of the credibility of individual witnesses. While such statements may be desirable, a careful reading of Olds reveals that specific findings were particularly crucial under the facts contained in the record of that case.

In Olds, the defendant testified at the suppression hearing that he had asked for an attorney but was told hat he would have to wait until questioning was completed. Despite being given two opportunities, the State made no effort to directly refute defendant's testimony. In the absence of any contradictory evidence and because the trial court failed to make it very clear that defendant was not believable, we could not find its conclusion that the statements were voluntary sufficiently supported by the record.

It is precisely on this point that Olds is distinguishable from the case at bar. Appellant testified that he made two separate requests for legal assistance; the first being made as he was being transported to the Coroner's Inquest, and the second coming later that day while he was being taken to Panhandler's Park. He alleged that the interrogations did not cease and his will was finally overborn. In direct contrast to Olds, the allegedly offending officers took the stand and testified that prior to each interrogation, appellant was read his rights, and that at no time, including the instances about which he complains, did appellant request legal assistance. Indeed, if these officers are believed, appellant asked to speak to them.

As we said in State v. Alewine, 474 S.W.2d 848, 852 (Mo.1971):

The question before the trial court at the conclusion of the hearing on the motion to suppress and again during the trial on defendant's objections to the testimony of oral confession was whether the alleged statement was voluntarily given and therefore, admissible in evidence. The question on appeal is whether the evidence was sufficient to sustain the trial court's finding that the statement was voluntarily given. (citations omitted).

Where there is conflicting evidence on the voluntariness of a statement, as there is here, the admissibility of a confession by a trial court is a matter of discretion which is not lightly disturbed. State v. Flowers, 592 S.W.2d 167, 170 (Mo. banc 1979); State v. Hopkirk, 84 Mo. 278 (1884). Inasmuch as the trial court implicitly found these statements voluntary, and such finding being substantially supported by the record, appellant's first contention is rejected.

Next, appellant maintains that the trial court erred in excusing a juror because of her answers to questions concerning her ability to impose the death penalty. The prosecuting attorney first inquired of the panel whether any of them would not be able to pronounce the death sentence, regardless of the evidence, because of religious, moral or conscientious scruples. In response, the juror stated that she did not think she could levy the death penalty under any circumstances. In a follow-up question, the prosecutor asked: "I'm understanding from you then that you could not impose the death penalty in any case, regardless of what the evidence was?" The juror replied: "That's right." When the defense asked whether the juror would automatically reject the death penalty or would think about it in extreme situations, the juror stated: "Well, I think I would think about it. But, I don't believe I could come to that decision."

Appellant argues that these responses are equivocal, and therefore, the juror's removal from the panel was error in light of the U. S. Supreme Court's decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1967). As we read Witherspoon and our own cases construing it, unless a venireman unequivocally and unambiguously states that he cannot and could not impose the death penalty in any case, regardless of the facts, he may not be excused from the panel for his general feelings about the death penalty. Id. at 522, n. 21, 88 S.Ct. at 1777, n. 21; State v. Pruitt, 479 S.W.2d 785, 792 (Mo. banc 1972).

Implicit in the trial court's act of excusing the juror in this case is the finding that she could not levy the death penalty in any case and that this opposition was clearly and unequivocally expressed. The tenor of the voir dire examination contained in the record fully supports that finding. Further, we are fully aware that the trial court is in a far better position to measure and evaluate a venireman's demeanor, State v. Harris, 425 S.W.2d 148, 155 (Mo.1968), and that rulings on challenges for cause lie generally within the sound discretion of the trial court. State v. Treadway, 558 S.W.2d 646, 649 (Mo. banc 1977), cert. den., 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1977); State v. Cuckovich, 485 S.W.2d 16, 22 (Mo. banc 1972). We find no abuse of that discretion. Therefore, we find that the trial court did not err in excusing this juror.

Appellant contends that the bifurcated trial procedure mandated by statute violates his rights to a fair trial and due process in the following respects: (1) having a separate...