State v. Whitmore

• Decision Date: 15 April 1997
• Docket Number: Nos. WD,s. WD
• Citation: 948 S.W.2d 643
• Parties: STATE of Missouri, Respondent, v. Calvin WHITMORE, Appellant. 48754, WD 51534.
• Court: Missouri Court of Appeals

Page 643

948 S.W.2d 643

STATE of Missouri, Respondent, v. Calvin WHITMORE, Appellant.

Nos. WD 48754, WD 51534.

Missouri Court of Appeals Western District.

April 15, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 1, 1997.

Application to Transfer Denied

Aug. 19, 1997.

Rosemary E. Percival, Asst. Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty .Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before ULRICH, C.J.,P.J., and BRECKENRIDGE and HANNA, JJ.

BRECKENRIDGE, Judge.

Calvin Whitmore appeals from his convictions of three counts of robbery in the first degree, § 569.020, and three counts of armed criminal action, § 571.015. ¹ Mr. Whitmore contends that the trial court erred by allowing a detective to testify that Mr. Whitmore ended a police interrogation by invoking his right to remain silent and his right to counsel after he was asked to provide a hair sample. He also claims that his convictions and punishments for first-degree robbery and armed criminal action violated his right to be free from double jeopardy because the facts, in the light most favorable to the judgments, do not comprise three separate robberies. In addition, Mr. Whitmore appeals the denial of his Rule 29.15 motion, claiming that his trial counsel was ineffective for calling as a witness a fingerprint expert whose testimony was detrimental to his defense.

The convictions are affirmed in part and reversed in part. The judgment denying Mr. Whitmore's post-conviction motion is affirmed.

At approximately 11:30 a.m. on January 28, 1993, Patricia Closer was working inside an office at Teefey's Flower Shop in Kansas City, Missouri. Upon hearing the buzzer on the store's front door, Ms. Closer walked into the sales area of the store, where she encountered an armed man whose face was masked by a stocking. The man told her to give him "all the money." When Ms. Closer replied that the money was kept in the back of the store, the man grabbed her and forced her to accompany him to the back office, where cash was kept in a drawer sitting on a table.

When the robber and Ms. Closer entered the back office, they interrupted the work of another employee, Dorothy Feeback. Pointing his gun at the two women, the man took the cash from the drawer, and then ordered them to give him their jewelry. Ms. Closer gave the man her wedding rings, an additional ring, a watch, and a bracelet. Ms. Feeback gave him her wedding band and her watch.

The man told the women to go down the stairs to the basement of the store. They complied. In the basement, the two women told the store's other employees working there that they had just been robbed. All the employees then left the store through a back door, and ran across to a shop next door to call the police. While Ms. Feeback was in the neighboring business, she saw a man pass by the front window. She recognized the man as the robber because he was tall, very thin and dressed in dark clothing with a dark knit cap on his head. This man was also noticed by Robert Watson, one of the floral designers who had been working in the basement.

Detective Melvin Beverlin responded to the crime scene, and found a nylon stocking on the floor of the premises. He also dusted for fingerprints and found a fingerprint on the money drawer in the back office. This print was run through the computer and Mr. Whitmore was identified as a possible match. A further analysis of the print led the police department examiner to conclude that it was Mr. Whitmore's right thumbprint, as there were seventeen matching characteristics between the two prints. The examiner explained at trial that ten matching characteristics were usually sufficient to conclude that two prints are from the same person.

After Mr. Whitmore's print was identified, the police assembled a pictorial lineup which included Mr. Whitmore's photograph, and showed it to Ms. Closer and Ms. Feeback. Neither woman was able to identify the robber from among the six photographs shown to them, because the robber had a stocking covering his face which distorted his features. Nor could Ms. Feeback identify anyone as the man she saw in front of the neighboring business a short time after the robbery. The photo lineup was also shown to Mr. Watson. Although Mr. Watson could not positively identify the person, he picked Mr. Whitmore out of the pictorial lineup as "looking most like" the man he saw walking by the neighboring business within a short time after the robbery.

On March 8, 1993, Mr. Whitmore was questioned by Detective John Jacobson. Mr. Whitmore was advised of his Miranda ² rights, which he waived, agreeing to answer questions without an attorney being present. About fifteen minutes into the interview, Mr. Whitmore invoked his right to counsel, and the interview concluded. At trial, despite Mr. Whitmore's continuing objection that the testimony would violate his constitutional rights, Detective Jacobson was permitted to describe the events leading to the end of the interrogation:

Q. Did the defendant ever refuse to answer further questions or did he desire to stop answering questions?

A. After 14 minutes into the interview with Mr. Whitmore he invoked his right to counsel.

Q. What happened at that time?

A. All questioning ceased, and he was returned to the Detention Unit.

Q. Is the time that we're referring to the only time that you questioned the defendant?

A. Prior to him invoking the right was the only time.

Q. And as far as you know, is this the only time the defendant was questioned regarding this matter?

A. Yes.

Q. Did the defendant, in fact, talk to you prior to invoking his right to remain silent?

A. Yes.

Q. Did the defendant, in fact, talk to you prior to invoking the right to remain silent?

A. Yes.

Q. What was the content of that conversation?

A. When I questioned Mr. Whitmore regarding this case, he denied any knowledge or involvement in the offense. He stated he was not familiar with the business and had never been inside that business before.

Q. Did you advise Mr. Whitmore any facts specific to this case?

A. I questioned him further, and he continued to affirm that he had not been inside Teefey's Flowers. I presented him with the information regarding the fingerprint recovered from the cash drawer from inside the business.

Q. What was his response?

A. He continued to deny it was him and it was not his print.

Q. Did you continue the conversation with the defendant at this time?

A. I asked Mr. Whitmore then if he was cooperative or if he was willing to be cooperative in the investigation.

Q. What did he tell you?

A. He said he would be willing to be cooperate.

Q. Then what did your conversation consist of?

A. I then advised or asked him if he would be willing to submit, to sign a Consent to Search Form to obtain head hairs regarding evidence in this case to be compared to that.

Q. And what was his response to that?

A. That was the point in which he invoked his right to counsel stating that he wanted a lawyer.

At the end of the trial, Mr. Whitmore was found guilty of three counts of first-degree robbery and three counts of armed criminal action. He was sentenced as a class X offender to three consecutive thirty-year terms of imprisonment on the robbery counts, and to three consecutive ten-year terms of imprisonment on the armed criminal action counts. He subsequently filed a notice of appeal. Mr. Whitmore also filed a Rule 29.15 motion, which was denied by the motion court following an evidentiary hearing. This proceeding consolidates his appeal from the denial of his post-conviction motion with his direct appeal.

In his first point on direct appeal, Mr. Whitmore claims that the trial court erred by allowing Detective Jacobson to testify that Mr. Whitmore ended the interrogation by invoking his right to counsel after being asked to provide a hair sample. Mr. Whitmore contends that this testimony was an impermissible comment on his post-arrest silence.

It is well established that the State may not use a defendant's post-arrest silence, or language representing silence, to incriminate the defendant. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 98 (1976), State v. Frazier, 927 S.W.2d 378, 379 (Mo.App.1996). In this context, "silence" includes not only a defendant's refusal to speak to police, but also a defendant's request for an attorney. Wainwright v. Greenfield, 474 U.S. 284, 295 n. 13, 106 S.Ct. 634, 640 n. 13, 88 L.Ed.2d 623, 632 n. 13 (1986). See also State v. Tims, 865 S.W.2d 881, 885 (Mo.App.1993).

Once a defendant has waived his right to remain silent, as Mr. Whitmore did at the outset of the interrogation, subsequent responses made during the course of custodial interrogation may be admitted into evidence and remarked upon, as well as the circumstances surrounding the termination of the interrogation. Frazier, 927 S.W.2d at 379-80. But any evidence concerning the termination of an interrogation which reveals that the defendant failed to answer a direct charge of guilt, or that the defendant "clammed up" under circumstances calling imperatively for an admission or denial, is improper and should not be admitted. Id. at 380. If no inference of guilt can be reasonably drawn from evidence describing the termination of an interrogation, such evidence is admissible. Id.

In Tims, the Eastern District held that it is improper per se to allow testimony that a defendant's request for an attorney terminated an interrogation, as an inference of guilt might reasonably be drawn from such a request for an attorney. 865 S.W.2d at 886. This holding was narrowed by the court in Frazier, which ruled that a defendant's request for an attorney creates an inference of guilt only under certain circumstances, as when the request is "in direct response to a charge of guilt or under circumstances calling imperatively for an admission or...