State v. Tally

• Decision Date: 26 January 2005
• Docket Number: No. 25710.,25710.
• Citation: 153 S.W.3d 888
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John TALLY, Defendant-Appellant.
• Court: Missouri Court of Appeals

153 S.W.3d 888

STATE of Missouri, Plaintiff-Respondent, v.John TALLY, Defendant-Appellant.

No. 25710.

Missouri Court of Appeals, Southern District, Division One.

January 26, 2005.

Irene Karns, Columbia, for appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, for respondent.

PHILLIP R. GARRISON, Judge.

On April 29, 2004, this court issued an opinion in this case.On August 24, 2004, by order of the Supreme Court of Missouri, this cause was transferred to that court.On December 21, 2004, the Supreme Court entered an order retransferring the cause to this court.The original opinion of this court, which follows, is now readopted and reissued.

John Tally("Appellant") was charged as a prior and persistent offender with one count of production of a controlled substance, a violation of Section 195.211.¹Following trial by jury, he was found guilty and sentenced by the trial court, as a prior and persistent offender, to fifteen years imprisonment.In a single point on appeal, Appellant alleges it was prejudicial error for the trial court to overrule his motion to suppress an incriminating statement he made to law enforcement authorities during what Appellant contends was a custodial interrogation.We agree, and must therefore reverse the judgment appealed from and remand for new trial.

I.Statement of Facts

Appellant does not contest the sufficiency of the evidence supporting his conviction.Viewed in the light most favorable to the verdict and the trial court's ruling on Appellant's motion to suppress, State v. Rousan,961 S.W.2d 831, 845(Mo. banc), cert. denied,524 U.S. 961, 118 S.Ct. 2387, 141 L.Ed.2d 753(1998), the evidence revealed the following: on September 2, 2002, Rick Hamilton("Hamilton") and Eugene Wood("Wood"), both of the Webster County, Missouri sheriff's department, and Alva Thurman "(Thurman"), of the Missouri State Highway Patrol, were engaged in a marijuana eradication effort in Webster County.Their efforts involved the use of a highway patrol helicopter, flown by Thurman, and in which Wood also rode, and communication with Hamilton, who was nearby in his patrol car.

Pursuant to a tip the officers had received, they focused their search on the property of Joe Horman("Horman") near Marshfield, Missouri.In a field behind Horman's house, Thurman and Wood observed what appeared to be two cultivated patches of marijuana plants approximately 150 yards apart.They informed Hamilton by radio of the find, and Hamilton went to the door of Horman's home to ask him about the plants.

Meanwhile, Thurman and Wood spotted Appellant standing between the two marijuana patches, approximately fifty yards from one and one hundred yards from the other, and looking up at the helicopter.There was no evidence that Appellant had just been tending to the plants.Thurman brought the helicopter closer to Appellant and made a gesture to him indicating that he was to walk toward Horman's house.Appellant complied, and Thurman and Wood followed him in the helicopter toward the house.

When Hamilton was informed by radio of Appellant's presence in the field, and that he was walking toward the house, he sought and received Horman's permission to enter the field to meet Appellant.Hamilton was unarmed and not in uniform; thus, out of concern for his safety, he ordered Appellant to get on his knees and raise his arms to expose his waistband, in order that Hamilton could determine if Appellant was armed.He was not.

There is considerable dispute in the record concerning whether Appellant was immediately allowed to stand up and walk to where Hamilton was standing, as Hamilton testified, or if, instead, Appellant was forced to stay on his knees during his subsequent conversation with Hamilton, as testified to by Wood, Horman, and Appellant.In any event, Hamilton next told Appellant that marijuana had been spotted growing in the field Appellant had just left.Appellant denied any knowledge of the plants, telling Hamilton that he had been in the field looking for rocks, with Horman's permission.²Appellant asked Hamilton if he was under arrest, and Hamilton told him that, at that time, he was not.

Hamilton then asked Appellant if he was familiar with "box cameras."Appellant said he was not, and Hamilton replied that a box camera was a concealed video camera that enabled authorities to record any activity around locations such as the marijuana patches in Horman's field.In fact, no such device had been installed in the field.Unaware of that fact, Appellant immediately confessed to Hamilton that the plants in the field were for his personal use.Wood testified that it was at this point in the conversation that he approached Appellant from behind, after Thurman landed the helicopter a short distance from Appellant and Hamilton.Hamilton instructed Wood to arrest Appellant, who was then handcuffed and read his Miranda rights as he was led to Hamilton's patrol vehicle.The plants in the field were removed and sent to a highway patrol laboratory, where testing confirmed they were marijuana plants, and that the leaves thereof weighed 387 grams.

Appellant was charged as indicated above in the circuit court of Webster County.Following change of venue to Dallas County, Appellant filed a motion to suppress the incriminating statement he made to Hamilton prior to being arrested and Mirandized, claiming the statement was the result of an improper custodial interrogation.Following a hearing, the trial court denied Appellant's motion.Appellant's subsequent trial resulted in a mistrial.He was tried a second time and convicted and sentenced, as a prior and persistent offender, as indicated above.This appeal follows.

II.Appellant's Point Relied On

In his sole point on appeal, Appellant contends that the trial court erred in overruling his motion to suppress his statement acknowledging that the marijuana plants belonged to him, and admitting that statement into evidence at trial over his objection.Appellant argues that the statement was "presumptively coerced" and inadmissible in that it was elicited during a custodial interrogation prior to which Appellant had not been informed of his rights to assistance of counsel and protection from compelled self-incrimination.Admission of the statement was prejudicial, according to Appellant, because the evidence was otherwise insufficient to support a finding of guilt.

III.Standard of Review

In reviewing a claim of error relating to a trial court's ruling on a motion to suppress, "[t]he correctness of the trial court's decision is measured by whether the evidence is sufficient to sustain the findings."State v. Donnell,849 S.W.2d 733, 733(Mo.App. S.D.1993).In answering this question, "the facts and reasonable inferences from such facts are considered favorably to the trial court's ruling and contrary evidence and inferences are disregarded."State v. Galazin,58 S.W.3d 500, 507(Mo. banc 2001)."Deference is given to the trial court's superior opportunity to determine the credibility of witnesses."Rousanat 845.When, however, the issue to be decided involves the constitutional protection against forced self-incrimination, our review of the trial court's ruling is a two-part inquiry: we defer to the trial court's determinations of witness credibility and findings of fact, but consider the court's conclusions of law de novo.State v. Werner,9 S.W.3d 590, 595(Mo. banc 2000).Moreover, "[f]actual issues on motions to suppress are mixed questions of law and fact" and "`the trial court's superior capacity to resolve credibility issues is not dispositive of the "in custody" inquiry'"Id.(quotingThompson v. Keohane,516 U.S. 99, 113, 116 S.Ct. 457, 465, 133 L.Ed.2d 383, 394-95(1995)).

IV.Analysis

A.Legal Background

The Fifth Amendment to the United States Constitution states, in pertinent part, that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself[.]"U.S. CONST. amend. V.This provision is applicable to the States in all criminal prosecutions.Dickerson v. United States,530 U.S. 428, 432, 120 S.Ct. 2326, 2329-30, 147 L.Ed.2d 405, 412(2000).Moreover, protection against self-incrimination under the Missouri Constitution is commensurate with that provided in the federal constitution.Wernerat 595, MO. CONST. art. I, § 19.

In Miranda v. Arizona,384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), the Supreme Court of the United States held that custodial interrogation by police must not occur prior to a suspect being informed of his right to assistance of counsel and his right against self-incrimination.Id. at 444, 86 S.Ct. 1602.By "custodial interrogation,"the Court"mean[t] questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."Id.In such a context, statements of a suspect, whether exculpatory or inculpatory, are inadmissible on the issue of the defendant's guilt of the charged offense when made without the benefit of having been informed of his rights under the Fifth Amendment.Id.Whether Appellant was in custody when he made incriminating statements to Hamilton becomes, therefore, the threshold question in our analysis of Appellant's point.

B.Was Appellant in Custody?

As indicated above, the Miranda Court defined custody as either formal arrest or circumstances in which a suspect is "deprived of his freedom of action in any significant way."Miranda at 444, 86 S.Ct. 1602.In Berkemer v. McCarty,468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317(1984), the Court clarified this definition when it noted the by-then "settled" doctrine "that the safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a `degree associated with formal arrest.'"Id. at 440, 86 S.Ct. 1602(quotingCalifornia v. Beheler,463...