State v. Stevenson, KCD

• Decision Date: 05 May 1975
• Docket Number: No. KCD,KCD
• Citation: State v. Stevenson, 523 S.W.2d 349 (Mo. App. 1975)
• Parties: STATE of Missouri, Respondent, v. Andrew STEVENSON, Appellant. 26984.
• Court: Missouri Court of Appeals

Page 349

523 S.W.2d 349

STATE of Missouri, Respondent, v.Andrew STEVENSON, Appellant.

No. KCD 26984.

Missouri Court of Appeals, Kansas City District.

May 5, 1975.

Willard B. Bunch, Public Defender, Philip H. Schwarz, Asst. Public Defender, Kansas City, for appellant.

John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P.J., PRITCHARD, C.J., and TURNAGE, J.

TURNAGE, Judge.

Defendant appeals his conviction of two counts of murder first degree and one count of assault with intent to kill with malice.The jury assessed punishment at life imprisonment on each of the murder counts and ninety-nine years on the assault count.

Since a statement given by the defendant was erroneously admitted into evidence and this case must be reversed, only sufficient facts to place the statement in its proper setting will be narrated.

The day after two teenaged boys were killed and one seriously wounded while they were sitting in a parked automobile, the defendant was arrested and charged with these crimes.He was confined in the Jackson County Jail after having been given his Miranda warning.On the following day, Detectives VanBuskirk and Smith of the Kansas City Police Department went to the county jail for the purpose of interrogating the defendant.The defendant was taken by the two detectives to a small room where VanBuskirk asked the defendant to sign a waiver of his rights following the Miranda format.The defendant stated he had signed the same form on the previous day, but VanBuskirk requested he sign another since the previous one had not been signed in the presence of VanBuskirk.

VanBuskirk testified in a pre-trial motion to suppress the statement given by defendant to the two detectives that defendant for the first fifteen or twenty minutes of the interrogation denied any participation in the crimes and stated he had been at home at the time in question.VanBuskirk further stated he told the defendant during this time he had statements from two men who were with defendant at the time of the crimes and these two men had both stated the defendant was the one who had done the shooting.The defendant then admitted knowing the other two men and to being with them on the night of the crimes.At this time the defendant commented he was just a victim of circumstances and stated he did not want to say anything until he had talked with an attorney.VanBuskirk then inquired if he wanted to call an attorney and defendant said he did not.VanBuskirk then inquired if he wanted him to call an attorney and the defendant again replied he did not.

VanBuskirk further testified the defendant next asked him if it would make any difference if he made a statement, and he told the defendanthe would still be charged with two counts of murder and possibly three if the third person died.VanBuskirk further informed him he had not been able to establish a motive for the shooting, and the other two men who had implicated the defendant could give no reason.

VanBuskirk further testified the conversation thereupon stopped for about two minutes and all three parties remained silent.He stated the defendant was sitting in a chair with his head down in a dejected state.VanBuskirk stated on cross-examination that during the two minute pause he did not give the defendant any impression he was going to cease talking with him or break off the conversation.VanBuskirk then stated the defendant resumed the conversation by again stating he was just a victim of circumstances and then began to relate the details of how he shot the three boys.

Defendant asserts the statement given by him after he told the detectives he wished to remain silent and to consult an attorney violated his rights as enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

In Mirandathe court stated at pages 473, 474, 86 S.Ct. at page 1627:

'Once warnings have been given, the subsequent procedure is clear.If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.'

The court in Miranda further held if an interrogation continues without the presence of an attorney and a statement is taken, the State has a heavy burden to demonstrate the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel.The court further stated at page 475, 86 S.Ct. at page 1628:

'Presuming waiver from a silent record is impermissible.The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer.Anything less is not a waiver.'

In the case at bar, the State's evidence through Detective VanBuskirk shows the defendant was informed of his rights and signed a written waiver of his right to remain silent and his right to have counsel.This same evidence further shows that prior to ...