State v. Urhahn, 42851

• Decision Date: 28 July 1981
• Docket Number: No. 42851,42851
• Citation: 621 S.W.2d 928
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ann G. URHAHN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 928

621 S.W.2d 928

STATE of Missouri, Plaintiff-Respondent, v. Ann G. URHAHN, Defendant-Appellant.

No. 42851.

Missouri Court of Appeals, Eastern District, Division One.

July 28, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 21, 1981.

Stephen J. Nangle, Clayton, for defendant-appellant.

John Ashcroft, Atty. Gen., John C. Reed, Kristie Green, Asst. Attys. Gen., Jefferson City, George Westfall, Pros. Atty., Clayton, for plaintiff-respondent.

DOWD, Judge.

Ann G. Urhahn, defendant herein, appeals her conviction by a jury of leaving the scene of a motor vehicle accident. § 577.060 RSMo 1978. Defendant was found not guilty of manslaughter and two other counts of leaving the scene of motor vehicle accidents. Defendant was sentenced to 90 days in jail. Defendant appeals. We affirm.

Ann G. Urhahn and Dennis Urhahn were divorced in 1978 with Dennis Urhahn receiving custody of their two minor children. On July 4, 1979 at approximately 9:00 a.m. Ann Urhahn picked up the two children from Dennis Urhahn's residence on Echo Lane. She returned the children later that evening at approximately 10:30 p.m. Defendant was driving a borrowed pickup truck which she parked on the street. Leaving the motor running, the defendant handed the children to Dennis Urhahn and a neighbor. An argument arose between the defendant and the decedent Kimberly Russell, Mr. Urhahn's fiancee, over whether the defendant was late in returning the children. Miss Russell and the defendant then challenged each other to a fight. After a twenty minute argument involving other neighbors, the defendant said she was leaving and drove away. After driving eight or ten feet the defendant attempted to close the door to the truck and found Russell hanging onto it. The door swung in and out as Russell attempted to grab the wheel. The defendant continued driving up Echo Lane swerving back and forth across the road. Dennis Urhahn and the other neighbors testified they lost sight of the truck at the crest of the hill. Wayne Wenzinger testified he was sideswiped by a truck that was swerving back and forth across the road and that he heard a subsequent crash. Both Ernest Bressie and John Dierbak testified to having their cars parked on the 9400 block of Echo Lane that evening, that they heard crashes and found their cars had been damaged. The defendant knew Miss Russell was unconscious after the first impact, and that her head was down, but does not remember when she fell off the truck. Defendant then picked up her boyfriend whom she had left at a Majic Market. He was shocked to see the truck door damage and the defendant told him what had happened saying, "She's hurt bad. ... We have to get out of here." They then proceeded to his parents' home in South County. She then spoke with her sister and the police. The defendant was arrested and advised of her Miranda rights on three separate occasions. She indicated she understood them the first two times but not the third. She also indicated they contained the same language all three times. The defendant refused to sign the waiver but elected to make an oral statement to Officer Papish to the effect that she had been trying to get away, she did not want any trouble, but Russell would not let her leave. At no time did the defendant request the presence of an attorney. Defendant was never abused or harmed in any way by the officers.

On this appeal, defendant contends the trial court erred in the following respects:

1) Refusing to sustain appellant's motion to suppress statements;

2) Failing to sustain defendant's motion for judgment of acquittal at the close of all the evidence;

3) Refusing to submit Instruction No. "B" 2.40 M.A.I. CR2d dealing with conduct justifiable as an emergency measure;

4) Failing to set aside the verdict as rendered in Count II due to its legal and logical inconsistency with the verdicts rendered in Counts III and IV.

The defendant first contends that statements made to the interrogating officer were involuntary as she had not waived her right to silence or her right to counsel. We disagree. Evidence at the suppression hearing supports the assertion that the defendant voluntarily waived her Miranda rights. It is clearly established that a waiver of those rights need not be by an express declaration and that the question of waiver must be determined on the particular facts and circumstances surrounding the case. A waiver can be inferred from the actions and words of the person interrogated. State v. Ross, 606 S.W.2d 416 (Mo.App.1980); North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). In this case the defendant was advised of her Miranda rights on three separate occasions. She indicated that she understood them two out of the three times, but refused to sign the waiver form. However, the defendant did agree to make an oral statement.

In effect, she told the officer that she had been trying to get away and that she did not want any trouble but that she (Russell) would not let her leave. In State v. Hull, 595 S.W.2d 49, 51 (Mo.App.1980) the defendant was advised of his rights and refused to sign the waiver, but did elect to make an oral statement. The court held that "a refusal to sign such a written declaration does not necessarily preclude an oral or an implied waiver." In this case, the appellant's willingness to make an oral statement clearly indicates an implied waiver of her right to silence. See State v. Sterling, 536 S.W.2d 843 (Mo.App.1976); State v. Clark, 596 S.W.2d 747 (Mo.App.1980).

In further support of her contention that the statements were involuntary, defendant relies on the fact that the interrogation continued after she had requested counsel. The record does not support this assertion. The defendant testified that she was advised of her rights and that her request was merely an inquiry as to her right to have counsel.

Defendant also asserts that she was psychologically coerced into making the statements. We find no merit to this contention. The test of voluntariness of a confession or statement is whether or not the defendant's will was overborne to such a degree by the law enforcement officers that the defendant was deprived of a free choice to admit, to deny or to refuse to answer any questions. State v. Crowley, 571 S.W.2d 460, 464 (Mo.App. 1978); State v. Higgins, 592 S.W.2d 151, 158 (Mo.banc 1979). Here the defendant testified that Officer Papish told her "that the only way I could help myself to get out of trouble was to speak to him then." A confession cannot be extracted by any direct or implied promises ... nor by the exertion of any improper influence. However, the promise of anything to the accused which will exclude the admission must be positive in its terms and clear in its implications. Bram v. U.S., 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); State v. Hughes, 596 S.W.2d 723 (Mo.banc 1980). The defendant also testified that she was not punished or abused by the officers. Since the record fails to reflect any substantial evidence of coercion or duress or of promise of leniency or reward, and Officer Papish's comment appears to be a mere expression of opinion, the statements must be deemed voluntary. ¹

Finally the defendant asserts that her emotionally distraught state and the fact that the interrogation occurred in the early morning hours serve as special circumstances indicating her waiver was involuntary. We find no merit to this contention. See, State v. Sterling, supra; State v. Jones, 218 Kan. 720, 545 P.2d 323, 327 (1976).

"Totality of the circumstances" as the defendant urges this court to consider means a careful and conscientious appraisal of all the evidence. The burden is on the state to show that the statements were voluntarily made. Upon a careful review of the record this court finds that the state met its burden. The defendant was advised of her rights, and declined to exercise them when she made her oral statements. Defendant made no request for counsel. When she refused to say anything else defendant's right to cut off questioning was scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Upon these facts this court finds that the defendant had voluntarily, knowingly, and intelligently waived her right to silence and to counsel.

Defendant's second point of error is that the trial court failed to sustain her motion for judgment of acquittal as the state failed to make a submissible case. In determining whether a submissible case was made, we consider the evidence and all favorable inferences to be drawn therefrom in the light most favorable to the state and disregard all evidence and inferences to the contrary. State v. Shaw, 602 S.W.2d 17, 19 (Mo.App.1980). The record reflects testimony which demonstrates the defendant was operating the truck. Wayne Wenzinger testified he saw the truck swerving back and forth, that it hit his vehicle, and that he heard a subsequent crash. Bressie, whose car was located some fifty to seventy-five feet west of Wenzinger's testified his car had been damaged. The defendant stated to Officer Papish that she was trying to get away and that Miss Russell would not let her leave. She later testified the truck was swerving back and forth across the road. Upon this evidence the jury could infer that the defendant was the operator of the truck. Defendant argues the state's case is wholly circumstantial and therefore subject to a more stringent review. We disagree with defendant's contention. Where the evidence is partially direct and partially circumstantial the test as to submissibility is not that of a purely circumstantial evidence case, State v. Jones, 594 S.W.2d 932, 934 (Mo.1980) and in such a case it is not necessary to give a circumstantial evidence instruction, State v. Baldwin, 571 S.W.2d 236, 240 (Mo.banc 1978). The statements made by the accused are direct evidence of her guilt. State v. Rocha, 526...