State v. Simon, 13321

• Decision Date: 16 October 1984
• Docket Number: No. 13321,13321
• Citation: 680 S.W.2d 346
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Mildred Ann SIMON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 346

680 S.W.2d 346

STATE of Missouri, Plaintiff-Respondent, v.Mildred Ann SIMON, Defendant-Appellant.

No. 13321.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 16, 1984.

Motion for Rehearing or to Transfer

Denied Nov. 7, 1984.

Margaret Elise Branyan, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., Richard Baugh, John M. Morris, Asst. Attys.Gen., Jefferson City, for plaintiff-respondent.

FLANIGAN, Judge.

A jury found defendantMildred Simon guilty of murder in the second degree, § 565.004, ¹ and assessed her punishment at ten years' imprisonment.Defendant appeals.Defendant does not challenge the sufficiency of the evidence to support the verdict.

Defendant contends that the trial court erred in overruling her motion to suppress a statement, reduced to writing and admitted into evidence as state's Exhibit 58, which she gave on September 3, 1982, in Newburgh, New York, to Det. Sgt. Phillip Ginquitti of the Newburgh Police Department.Defendant was born on December 11, 1965.The statement was given in the presence of defendant's motherJulia Decker.Also present was Det. William Engle of the Youth Division of the City of Newburgh Police Department.The statement was incriminating.

Defendant asserts that her statement should have been suppressed on the following grounds: (a)she did not make a knowing, voluntary and intelligent waiver of her constitutional rights to remain silent and to counsel; (b) the statement was elicited in violation of § 211.061.1 and several Juvenile Court Rules, ² including Rule 122.05, because she"was not immediately taken before the juvenile court or a juvenile officer upon arrival at juvenile court, the manner of taking the statement was violative of her rights as a juvenile, and she was not informed that her statement could or would be used against her in a criminal proceeding."

Sec. 211.061.1 reads:

"1.When a child is taken into custody with or without warrant for an offense, the child, together with any information concerning him and the personal property found in his possession, shall be taken immediately and directly before the juvenile court or delivered to the juvenile officer or person acting for him."

A "child," as used in Chapter 211 dealing with juvenile courts, is "a person under 17 years of age."§ 211.021(2).Defendant was a child at the time Exhibit 58 was obtained.

Juvenile Rule 122.05, which became effective January 1, 1982, reads:

"Prior to in-custody interrogation, the juvenile shall be advised by the juvenile officer that he has the right to remain silent, that he has the right to an attorney and if he is unable to afford an attorney that one will be provided for him, that whatever he says to the juvenile officer or juvenile court personnel cannot be used in any proceedings except in juvenile court, that if he does talk he has the right to stop talking at any time and that whatever he says to the police or others than the juvenile officer or juvenile court personnel may be used against him in the event he is prosecuted as an adult."(Emphasis added.)

A "juvenile" is a person under the age of 21 years who is subject to the jurisdiction of the juvenile court.Rule 110.05(a)(9).

The murder victim was Emmanuel Tebo and the offense took place on November 16, 1981, in Springfield.The state's evidence showed that the actual killer was Tim Hayes, defendant's boy friend.The state's theory was that defendant aided Hayes in stealing the victim's automobile and that fatal blows were inflicted on the victim in furtherance of the larceny.

On the day following the murder, Tebo's car was found near St. Louis where defendant and Hayes had abandoned it.Defendant and Hayes hitchhiked to Newburgh, New York, where defendant lived with her mother.For several months New York authorities had been unsuccessful in trying to locate defendant at her home in Newburgh, but her family knew that defendant was wanted by Missouri authorities in connection with the homicide.On September 3, 1982, defendant's brother telephoned Newburgh police Sgt. Phillip Ginquitti and informed him that defendant wanted to surrender herself.Sgt. Ginquitti and Det. Engle went to defendant's home shortly before noon.

At the hearing on the motion to suppress, ³ Sgt. Ginquitti, the only witness concerning the circumstances surrounding the taking of the statement, testified, under direct examination by the prosecutor, that he told defendant and her mother that defendant was under arrest on a murder charge "out of Springfield, Missouri."Ginquitti was wearing a suit "with a sports jacket" and was carrying a pistol although it was not visible.Engle was in plain clothes.The two men were accompanied by two uniformed patrol officers who resumed their patrol after Engle and Ginquitti took defendant into custody.

Defendant was given "five to eight minutes" to get dressed and then the foursome, consisting of Engle, Ginquitti, defendant and her mother, went to the Youth Bureau.Ginquitti "gave her the Miranda warnings which I read to her from a card, which she signed."On the back of that card ⁴defendant wrote that she understood the rights that had been read to her, that she would answer Ginquitti's questions without an attorney being present, and that she was not represented by an attorney in any other criminal matter.The card was signed at 12:05 p.m.

Ginquitti stated that no threats or promises of leniency were made to defendant and that she appeared to understand the warnings.Ginquitti then interviewed her orally in the presence of her mother.He commenced typing the statement at 1 p.m. and it was completed at 2:12 p.m.No one left the room or indicated a desire to do so during the taking of the statement.Several times defendant said she wanted to talk to her mother privately and was permitted to do so.Defendant was not distraught except when she described the beating of Tebo by Hayes.

Ginquitti testified that he turned defendant over to the City of Newburgh juvenile authorities and "they went to the Family Court and made arrangements with Missouri."Ginquitti also said he"turned the statement over to Missouri authorities as an investigative tool....I don't know what your rules are in Missouri."

Significantly, under cross-examination by defense counsel, Ginquitti gave the following testimony:

Q.Now it's your testimony that all you told the defendant about this statement was that it would be sent to Missouri and along with any statement of cooperation, if she cooperated, is that correct?

A.I said her cooperation would be made known to Missouri authorities, that this statement would go out there, and I believe I told her her biggest problem at that time was whether or not she was going to be tried as an adult or a juvenile in the State of Missouri, but I had no jurisdiction over that.

Q.O.K.So you didn't specifically say to her: "This statement will be used in a criminal court as opposed to a juvenile court," did you?

A.It was going to be used in the State of Missouri--given to the authorities in the State of Missouri where she was wanted for the crime of murder.

Q.My question was: You didn't specifically say that this would be used in a criminal court as opposed to a juvenile court, did you?

A.No, not those words, no.

Q.Did you hear anyone tell her that this statement would be used against her in a criminal court in the State of Missouri?

A.Not in my presence, no.

Q.And your statement to her was that she could be tried in either a juvenile court or a criminal court, is that correct?

A.No. I said her biggest concern at that time, meaning September 3, 1982, when I was taking this statement, was whether or not she was going to be tried as an adult or a juvenile.That was her biggest concern.

Q.Why did you tell her that was her biggest concern?

A.Because if she's tried as a juvenile and found guilty, the time is not that great, whereas an adult, it's a considerable amount of time to be served if found guilty.

Defendant's motion to suppress challenged the admissibility of the statement on several grounds, including ground (a) and those portions of ground (b) which alleged a violation of § 211.061.Those objections were renewed when Exhibit 58 was offered into evidence at the trial and in the motion for new trial.Accordingly they have been preserved for appellate review.However, the objections based upon alleged violations of the four Juvenile Court Rules were made for the first time on appeal and thus have not been preserved for appellate review.State v. Jackson, 635 S.W.2d 495, 496[2, 3](Mo.App.1982).Rule 29.11(d).The latter objections may be considered only if they constitute plain errors affecting substantial rights.Rule 30.20.

Missouri cases based upon § 211.061 hold that a statement of the juvenile to police, in response to police questioning at a time when the police have failed to deliver the juvenile to the juvenile authorities as required by § 211.061, may not be used against the juvenile in criminal proceedings.State v. Larson, 623 S.W.2d 69, 71(Mo.App.1981);Hamby v. State, 454 S.W.2d 894, 896-897(Mo. banc 1970);State v. Arbeiter, 408 S.W.2d 26, 30(Mo.1966).As stated in Larson, a child taken into custody "must be accorded all of the rights to which he would be entitled if he were an adult, including full advice as to his constitutional rights in compliance with the Miranda decision."⁵623 S.W.2d at 71-72.

Sec. 211.131 provides, as applicable here, that when any child found violating any law is taken into custody, the taking into custody is not considered an arrest, the parent of the child shall be notified as soon as possible, and the jurisdiction of the court attaches from the time the child is taken into custody.

It should be observed that defendant's point makes no mention of § 211.271(3) which reads, in pertinent part: "After a child is taken into custody as provided in § 211.131, all...