State v. Stokes, 49464

• Decision Date: 22 April 1986
• Docket Number: No. 49464,49464
• Citation: 710 S.W.2d 424
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Marvin STOKES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 424

710 S.W.2d 424

STATE of Missouri, Plaintiff-Respondent, v. Marvin STOKES, Defendant-Appellant.

No. 49464.

Missouri Court of Appeals,

Eastern District,

Division Three.

April 22, 1986.

Motion for Rehearing and/or Transfer

Denied May 20, 1986.

Application to Transfer Denied

June 17, 1986.

George Peach, St. Louis, William L. Webster, Atty. Gen., Christine M. Szaj, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Henry Robertson, St. Louis, for defendant-appellant.

SIMON, Judge.

Defendant, Marvin Stokes, appeals from a conviction of second degree murder. Section 565.004, RSMo 1978. Following a jury verdict in the Circuit Court of the City of St. Louis, the defendant was sentenced to a prison term of fifteen years.

On appeal, the defendant contends the trial court erred in: (1) overruling his motion to suppress his taped statement because (a) it was made while he was in custody pursuant to a warrantless arrest not based upon probable cause, and (b) it was induced by hope of immunity from prosecution and punishment; (2) overruling his motion for a mistrial when a witness unresponsively provided an answer which was hearsay upon hearsay. We affirm.

Defendant does not contest the sufficiency of evidence, therefore, the relevant facts of the case will be presented upon consideration of the defendant's points.

Defendant's first point relates to the trial court's refusal to suppress his taped statement. The defendant argues that the statement was made while he was unlawfully under arrest, since no probable cause existed to arrest him.

The lawfulness of a warrantless arrest turns on whether the police officers acted with probable cause. State v. Garrett, 627 S.W.2d 635, 641 (Mo. banc 1982). Whether the police had probable cause or not is determined by examining the information possessed by the officers prior to the arrest and all reasonable inferences which can be drawn therefrom. State v. Wiley, 522 S.W.2d 281, 287 (Mo. banc 1975). Whether such information constitutes probable cause is determined by whether a reasonably prudent and cautious person would believe that the suspect has committed an offense. State v. Heitman, 589 S.W.2d 249, 253 (Mo. banc 1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2164, 64 L.Ed. 795 (1980). The probable cause determination rests upon the particular facts and circumstances of the individual case and no "litmus paper test" can be applied. Hearsay may be considered, however it must have some inherent credibility upon which a reasonably prudent and cautious person would act. State v. Jackson, 658 S.W.2d 54, 56 (Mo.App.1983). The practical considerations of everyday life on which a reasonably prudent person acts, not the hindsight of legal technicians govern the probable cause determination. Wiley, 522 S.W.2d at 287.

The standard of review of a trial court's ruling on a motion to suppress evidence was set forth by our Supreme Court in State v. Blair, 691 S.W.2d 259 (Mo. banc 1985). The reviewing court is free to disregard contrary evidence and inferences, and is to affirm the trial court's ruling on a motion to suppress if the evidence is sufficient to sustain its finding. Blair, 691 S.W.2d at 260. The Blair court reviewed a trial court's ruling on a motion to suppress evidence gained as the result of an arrest which was a pretext to search for evidence of another offense. The constitutional values at stake in Blair are not sufficiently distinguishable from those at stake in the case at bar to merit a different standard of review.

Kathy Bruce was interviewed as part of the investigation of Conrad Daugherty's murder. Kathy Bruce was the girl friend of Conrad Daugherty, and is also the cousin of the defendant, Marvin Stokes. Kathy Bruce told the police that as Conrad Daugherty was dying he named the person who shot him. At first she said that person was Derick Bridget or Bridges, who was arrested, but later released. When she was again questioned about Conrad Daugherty's dying declaration, she admitted that she had lied to the police during the first interview. She said she had lied in order to protect the person Conrad Daugherty actually named since that person was her cousin, Marvin Stokes.

In his brief defendant characterizes Kathy Bruce as an informant and cites cases accordingly. We do not so characterize Kathy Bruce. "As we understand the term, persons who supply information only after being interviewed by police officers, or who give information as witnesses during the course of an investigation, are not informers." Gordon v. United States, 438 F.2d 858, 875 (5th Cir.1971) cert. denied, 404 U.S. 828, 92 S.Ct. 140, 30 L.Ed.2d 56 (1971) quoted in United States v. Oliver, 570 F.2d 397, 401 (1st Cir.1978). The cases cited by appellant which refer to the reliability of informants are inapposite.

Standing alone, Kathy Bruce's subsequent identification of Marvin Stokes as the person named by Conrad Daugherty in his dying declaration may not have provided a police officer with probable cause to arrest Marvin Stokes. Although her explanation of the reason why she initially lied to the police was plausible, it would not by itself provide a sufficient foundation for believing her second interview. Logically, no more reason existed for reaching the conclusion that Kathy Bruce was now telling the truth as to conclude she had created another layer of deceit to protect a true party in interest. However, the information available to the police was not limited to what Kathy Bruce had told them. Even though any one piece of information, while standing alone may not furnish probable cause, when viewed with other pieces each piece may increase in significance and relevance, and together rise to the level of probable cause.

The police knew of an anonymous phone call which connected defendant with the shooting of Conrad Daugherty, but the most probative information was supplied by the defendant.

On March 6, 1984 the defendant called the police station and spoke with Officer Bates. He said he knew that the police were looking for him. He agreed to come down to the police station and "turn himself in" between 9:00 and 9:30 a.m. on March 7, 1984, after he located Conrad Daugherty's gun. When the defendant did not present himself at the police station, as agreed, the police proceeded to arrest Marvin Stokes.

This evidence, taken together, forms a sufficient basis upon which the trial court could rule that the police had probable cause to arrest Marvin Stokes.

Defendant stresses that Officer Hendricks, one of the arresting officers, felt that without a statement by Marvin Stokes, a warrant for his arrest could not be obtained. An officer's subjective belief is not controlling on the question of probable cause. The facts supplying probable cause to arrest were present independently of Officer Hendricks' subjective belief and his personal assessment is of no real moment. Heitman, 589 S.W.2d at 254.

Additionally, defendant contends that the trial court erred in not suppressing his taped statement because it was induced by a promise of immunity from or leniency in prosecution and/or punishment, and therefore was involuntary.

The rule is clear. Involuntary confessions are not admissible into evidence. "The test for 'voluntariness' is whether the totality of circumstances deprived the defendant of a free choice to admit, to deny, or to refuse to answer, and whether physical and psychological coercion was of such a degree that defendant's will was overborne at the time he confessed." State v. Higgins, 592 S.W.2d 151, 158 (Mo. banc 1979), appeal dismissed, 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980). Although there is no single test for judging the voluntariness of a suspect's statement, a number of factors are relevant in making this determination. The age, experience, intelligence of the accused should be considered as well as his education, and any infirmity, or unusual susceptibility to coercion. State v. Flowers, 592 S.W.2d 167, 169 (Mo. banc 1979).

"A confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568, 573 (1897) quoted in State v. Hughes, 596 S.W.2d 723, 726 (Mo. banc 1980). However, the language in Bram in which a confession obtained by any direct or indirect promise, however slight, is defined a priori as involuntary has never been applied with wooden literalness. State v. Harvey, 609 S.W.2d 419, 423 (Mo.1980) citing United States v. Ferrara, 377 F.2d 16, 17 (2nd Cir.1967), cert. denied, 389 U.S. 908, 88 S.Ct. 225, 19 L.Ed.2d 225 (1967).

"While the Bram test has long been followed, it has not been applied on a strict, per se basis. [Citations omitted.] Rather, determinations of voluntariness are based upon an assessment of all the circumstances and factors surrounding the occurrence when the statement is made." United States v. Grant, 622 F.2d 308, 316 (8th Cir.1980); See also Rachlin v. United States, 723 F.2d 1373, 1377 (8th Cir.1983).

If promises, direct or implied, however slight, are made to a defendant by police officers during interrogation, the statement given by the defendant is not per se involuntary and therefore inadmissible. All the circumstances surrounding the statement must be considered in determining if the defendant's will was overborne by the promise. The nature of the promise must be considered. It must be positive in its terms and clear in its implications. State v. Unhahn, 621 S.W.2d 928, 932 (Mo.App.1981). The promise must directly relate to the crime charged. State v. Harvey, 609 S.W.2d 419, 422 (Mo.1980). It must be made by one in authority to deliver. State v. Hoopes, 534 S.W.2d 26, 35 (Mo. banc 1976). Of significance are any measures taken by the police to correct...