State v. Young

• Decision Date: 21 November 1989
• Docket Number: No. 55525,55525
• Citation: 781 S.W.2d 212
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Bruce YOUNG, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 212

781 S.W.2d 212

STATE of Missouri, Plaintiff-Respondent, v. Bruce YOUNG, Defendant-Appellant.

No. 55525.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 21, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Dec. 21, 1989.

Ernest L. Keathley, Jr., St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Ronald L. Jurgeson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

STEPHAN, Judge.

Defendant, Bruce Young, was charged with the Class B felonies of rape and sodomy, and was indicted by a grand jury on March 12, 1988. On August 3, 1988, the State filed an information in lieu of indictment changing the charge in Count I to attempted rape, a Class C felony. Defendant was found guilty of attempted rape on August 5, 1988. The jury was unable to reach a verdict on the sodomy charge. Defendant was sentenced to one year in the St. Louis County Jail.

The victim, a nine year old girl, was in Bellefontaine Park on a Saturday afternoon in January 1988. She began to play hide and seek with one of her schoolmates and two other children. The victim left the game to use a restroom located in the park. While she was in the process of using the toilet, and had her pants pulled down, a young man entered the restroom.

The man, later identified as defendant, grabbed the victim, pulled her onto the floor and lay on top of her. He pulled his pants down and touched his "private part" to her "private part." The victim testified his penis did not enter her vaginal area.

The victim returned home after she was able to get away. She did not report the incident because defendant had threatened to kill her mother if she told anyone what happened. The victim did, eventually, report the incident to a teacher and the police were contacted. Defendant was identified from a photographic array the police presented to the victim.

Defendant was arrested by Detective Maganza of the St. Louis County Police Department. Before interrogation began, Detective Maganza read the Miranda ¹ warning to defendant and, after going through each paragraph separately to ensure defendant understood his rights, had defendant sign a Miranda waiver form. Defendant made a statement implicating himself in the crime. This statement was witnessed by Detective Maganza and Sergeant Ventimiglia.

Defendant also made a second, tape recorded, statement. The Miranda warning was repeated and he was asked if he wished to make a statement. He answered "no" but, after a three to ten second pause, said that he would make a statement. During the pause defendant and the police officers sat and looked at each other, but no questions were asked.

Defendant presented both alibi testimony and a second defense: that the incident could not have occurred in a restroom in Bellefontaine Park because the restroom doors were padlocked from November 1987 until March 1988. The State put on one rebuttal witness, St. Louis County Police Officer Bayes, who testified that Bellefontaine Park was part of his regular patrol during the period in question. While patrolling the park during January and February of 1988 he noticed, on various occasions, that the restroom doors were unlocked and standing open.

Defendant raises three issues on appeal: 1) that the trial court erred in overruling his motion to suppress his confession; 2) that the trial court erred in allowing Officer Bayes to testify as a rebuttal witness; and, 3) that the trial court erred in denying his motion for acquittal at the close of the State's case and in denying his motion for new trial. We affirm.

In his first point, defendant asserts that the trial court erred in failing to suppress his confession because: 1) he was not asked if he wanted to consult with an attorney before, or have an attorney present during interrogation, and 2) the interrogation was not stopped when defendant stated he did not wish to make a statement. Prior to trial, Detective Maganza testified at a suppression hearing that defendant had been advised of his constitutional rights before any questioning began. This testimony was corroborated by Sergeant Ventimiglia. Defendant offered no evidence to contradict this testimony.

The question is whether there was sufficient evidence to sustain the trial court's finding that defendant's statement was voluntarily made. State v. Stokes, 710 S.W.2d 424, 428-429 (Mo.App.1986). On appellate review, we are free to disregard contradictory evidence and inferences and affirm the trial court's ruling on a motion to suppress if the evidence is sufficient to sustain its finding. Id. at 426. We will not disturb the trial court's ruling absent manifest error. State v. Allen, 684 S.W.2d 417, 422 (Mo.App.1984).

If an accused requests counsel, further questioning can be had only if the accused voluntarily, knowingly and intelligently initiates the communication. State v. Lewis, 734 S.W.2d 847, 852 (Mo.App.1987). The test for voluntariness of a confession is whether, in the light of the totality of the circumstances, the defendant was deprived of a free choice to admit, to deny or to refuse to answer, and whether physical or psychological coercion was of such a degree that defendant's will was overborne at the time he confessed. State v. Lytle, 715 S.W.2d 910, 915 (Mo. banc 1986).

Defendant was advised of his Miranda rights prior to questioning. Detective Maganza testified that he read the Miranda form to defendant. It stated:

Before we ask you any questions you must understand what your rights are:

1. You do not have to make any statement at this time and have a right to remain silent.

2. Anything you say can and will be used against you in a court of law.

3. You are entitled to consult with an attorney before any interview and to have an attorney present at the time of interrogation.

4. If you cannot afford an attorney, one will be appointed for you.

Detective Maganza further testified that after each paragraph was read defendant indicated his understanding by repeating it back in his own words. Defendant initialed each paragraph and signed the portion of the form which provided:

I have read the above statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

The State met its burden of showing defendant's statement was voluntarily given, that he was apprised of his right to consult with an attorney and that he understood his rights. Miranda does not require the police to educate defendants about the law prior to questioning; it only requires them to advise defendants of their rights to an attorney, whose obligation it is to advise the defendant of the legal consequences of any statement he may make. State v. Hogan, 748 S.W.2d 766, 768 (Mo.App.1988). The police here did an admirable job of advising defendant of his rights and assuring they were understood.

Defendant was readvised of his rights before he made his recorded statement. After indicating he understood, the following exchange occurred:

Maganza: Knowing and understanding these things that I just read to you, do you still wish to make a statement.

Young: No, I do not ... I do, well, o.k.,....

The record indicates that after stating "No, I do not" there was a pause of three to ten seconds. The police officers did not say or do anything during this pause. Defendant reinitiated the interrogation by agreeing to make a statement. The "totality of the circumstances" indicate that defendant's confession was voluntary and properly admitted.

Defendant argues, however, that the police stared at him during the pause and, because of his low I.Q., this served to coerce him into making the statement. We disagree. The police had no reason to believe that defendant was unable to understand the situation. They properly informed defendant of his rights and were given adequate assurances that he understood. See, State v. Hooks, 748 S.W.2d 742, 744 (Mo.App.1988). Moreover, even if staring is a form of coercion, and we have not been convinced that it is, three to ten seconds would not provide adequate time to coerce someone, even someone with a low I.Q. A person of low intelligence is capable of waiving Miranda protections. State v. Randolph, 698 S.W.2d 535, 539 (Mo.App.1985). We, therefore, hold that the trial court did not err in admitting the confession. Point I is denied.

In his second point, defendant asserts that the trial court erred in allowing Officer Robert Bayes to testify as a rebuttal witness. He argues that the State failed to provide defendant with the name of this witness during discovery.

At trial, defendant's objection was that Officer Bayes' testimony was improper rebuttal because it should have been presented during the State's case-in-chief. Defendant has failed to preserve this point for appeal. The point on appeal must be based upon the theory of the objection made at the trial. State v. Foulk, 725 S.W.2d 56, 69 (Mo.App.1987). Defendant did, however, raise discovery violation in...