In the Missouri Court of Appeals Eastern District DIVISION III
STATE OF MISSOURI, ) No. ED99261 ) Respondent, ) Appeal from the Circuit Court ) of Monroe County vs. ) ) Honorable Rachel Bringer Shepherd BRENDA CHURCHILL, ) ) Appellant. ) FILED: March 4, 2014
Introduction
Brenda Churchill (“Churchill”) appeals from the judgment of the trial court following a
bench trial in which Churchill was convicted of perjury. Churchill was charged with the class D
felony of perjury for false testimony she gave under oath during a protective custody hearing
before the Juvenile Division of the Monroe County Circuit Court (“juvenile court”). The trial
court found Churchill guilty of perjury and sentenced her to four years’ imprisonment. On
appeal, Churchill asserts that her perjurious testimony in the juvenile court proceeding should
have been suppressed in her criminal trial because such testimony was obtained in violation of
her constitutional and statutory rights to counsel and her constitutional right against self-
incrimination. Churchill also alleges that insufficient evidence exists to support her conviction
1 because her false statements were not material, and because she effectively retracted the
statements during the course of the juvenile court proceeding.
Although the trial court violated Churchill’s right to counsel under Missouri statute, lying
under oath is not a permissible response to such violation. Because the violation of Churchill’s
statutory right to counsel does not immunize her false testimony from prosecution for perjury,
the trial court did not commit error in denying Churchill’s motion to suppress her juvenile court
testimony. Churchill’s juvenile court testimony provides sufficient evidence to support the
judgment of the trial court. Accordingly, we affirm.
Factual and Procedural History
Viewed in the light most favorable to the verdict, the evidence adduced at trial is as
follows. On June 9, 2011, Churchill was served with a summons ordering her to appear at a
protective custody hearing on June 10, 2011, before Judge Michael Wilson (“Judge Wilson”) of
the juvenile court. The purpose of the hearing was to establish the identity and location of a
child, known as Christian Churchill, believed to be Churchill’s son, and to further determine
whether the child was in need of protection from the court. The summons instructed Churchill to
bring the child to the hearing.
Churchill appeared at the protective custody hearing alone. Counsel for the Juvenile
Office called Churchill’s daughter, Trista Churchill (“Trista”) and Churchill’s father, Marvin
McSparren (“McSparren”), to testify about the child in question. Trista testified that she knew of
a child named Christian Churchill, and that she understood the boy was Churchill’s son.
Similarly, McSparren testified that he knew of a child named Christian Churchill, who he
understood to be Churchill’s son. McSparren further testified that Churchill told him Christian
2 Churchill was her son, and that he had last seen Christian in Churchill’s home about month
before the hearing.
Churchill was next called to the stand and sworn in as a witness. Once on the stand,
Churchill immediately requested legal counsel. The juvenile court informed Churchill that
although she had a right to counsel, the court was going to proceed with the protective custody
hearing and that counsel for the Juvenile Office was free to ask Churchill questions. Churchill
repeated her re quest for an attorney at various times throughout the hearing. Counsel for the
Juvenile Office examined Churchill about the child in question. In response to said questioning,
and without being provided an opportunity to contact legal counsel, Churchill denied that she
had a child living with her in her home. She also denied giving birth to any children since her
parental rights to her youngest child were terminated. Churchill acknowledged that the summons
directed her to bring the child in question to the hearing, but she testified that she could not
“produce a child that I don’t have.”
At the end of the hearing, the juvenile court renewed its order for Churchill to produce
any children living in her home. Churchill again told the juvenile court that she could not
comply with the order because she had no children. The juvenile court warned Churchill that if
there was a child in her home, she could be held in contempt of court and prosecuted for perjury.
Churchill confirmed that she understood these consequences.
On June 27, 2011, Churchill brought her son, whose legal name is Joshua Churchill, to an
arranged meeting at the juvenile offices in Boone County. Thereafter, the State charged
Churchill with the class D felony of perjury for denying the existence of her son while under
oath at the protective custody hearing. Before trial, Churchill moved to suppress her juvenile
court testimony on the ground that the testimony was given in violation of her right to counsel.
3 The trial court denied her motion, and the matter was tried in a bench trial on July 5, 2012.
Churchill moved for judgment of acquittal at the close of the State’s evidence and at the close of
all evidence. Both motions were denied. The trial court convicted Churchill of perjury and
sentenced her to four years in the Missouri Department of Corrections. This appeal follows.
Points on Appeal
In her first point on appeal, Churchill alleges that the trial court erred when it denied her
motion to suppress and admitted her juvenile court testimony into evidence. Churchill argues
her testimony should have been suppressed because it was obtained in violation of her
constitutional right to counsel under the Sixth Amendment and Sections 10 and 18 of the
Missouri Constitution, her statutory right to counsel under Section 211.211, 1 and her Fifth
Amendment right against self-incrimination. In her second point on appeal, Churchill asserts
that the trial court erred in overruling her motions for judgment of acquittal because the State
failed to present sufficient evidence that her perjurious testimony was material and because
Churchill later retracted her false statements.
Standard of Review
Our review of a trial court’s ruling on a motion to suppress is limited to determining
whether the evidence is sufficient to support the trial court’s decision. State v. Umphfrey, 242
S.W.3d 437, 441 (Mo. App. E.D. 2007). We will reverse only if the ruling is clearly erroneous.
Id. We view the evidence in the light most favorable to the trial court’s ruling, giving deference
to the trial court’s factual findings and credibility determinations. Id. However, we review
questions of law de novo. Statutory interpretation is an issue of law that this Court reviews de
novo. State ex rel. Wolfrum v. Wiesman, 225 S.W.3d 409, 411 (Mo. banc 2007).
1 All statutory references are to RSMo 2000.
4 In reviewing the sufficiency of evidence in a court-tried case, we are limited to
determining whether the state presented sufficient evidence from which a reasonable trier of fact
could have found the defendant guilty. State v. Vandevere, 175 S.W.3d 107, 108 (Mo. banc
2005). We view all evidence and reasonable inferences therefrom in the light most favorable to
the verdict, ignoring all contrary evidence and inferences. Id.
Discussion
I. The trial court did not err in admitting Churchill’s juvenile court testimony into evidence.
Churchill’s first point on appeal challenges the admission of her juvenile court testimony
on both constitutional and statutory grounds. Specifically, Churchill maintains that her juvenile
court testimony was procured in violation of her right to counsel under the Sixth Amendment to
the United States Constitution, Sections 10 and 18 of the Missouri Constitution, Section 211.211,
and Missouri Supreme Court Rules 115.01 and 123.05. 2 Churchill also contends that the
statements should have been suppressed because they were obtained in violation of her Fifth
Amendment right against self-incrimination.
A. Constitutional Right to Counsel
Churchill first asserts that her perjurious testimony should have been suppressed because
it was obtained in violation of her constitutional right to counsel. In response, the State contends
that only criminal defendants enjoy a constitutional right to counsel, and the juvenile court
hearing at which Churchill appeared and perjured herself was not a criminal proceeding.
The Sixth Amendment provides, in pertinent part: “In all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S.
CONST. amend. VI. This mandate is paralleled by section 18(a) of the Missouri Constitution,
2 All rule references are to Mo. Sup. Ct. R. (2009), unless otherwise indicated.
5 which provides that “in criminal prosecutions the accused shall have the right to appear and
defend, in person and by counsel. . . .” MO. CONST. art. 1, sec. 18(a) (emphasis added). The
Sixth Amendment right to counsel applies in state proceedings by virtue of the Due Process
Clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963). As
an aspect of due process, the right to counsel turns not on whether a proceeding may be
characterized as “criminal” or “civil,” but on whether the proceeding may result in a deprivation
of liberty. State ex rel. Family Support Div.-Child Support Enforcement v. Lane, 313 S.W.3d
182, 186 (Mo. App. W.D. 2010); see also Lassiter v. Dep’t of Soc. Sevs. of Durham County,
N.C., 452 U.S. 18, 25 (1981) (explaining that the right to counsel attaches only where an
individual “may lose his physical liberty if he loses the litigation”). Attachment of the right to
counsel occurs when adversary judicial proceeding have been initiated against a person, by way
of formal charge, preliminary hearing, indictment, information, or arraignment. State v.
Washington, 9 S.W.3d 671, 675 (Mo. App. E.D. 1999).
Here, Churchill was summoned to appear at a protective custody hearing as the presumed
parent of Joshua Churchill (then known as Christian Churchill) pursuant to Section 211.032 of
the juvenile code. 3 The juvenile code is not intended to punish individuals for criminal conduct,
but is “to facilitate the care, protection and discipline of children who come within the
jurisdiction of the juvenile court.” Section 211.011. As such, proceedings under the juvenile
code are civil, not criminal in nature. J. D. H. v. Juvenile Court of St. Louis Cnty., 508 S.W.2d
497, 500 (Mo. banc 1974). By appearing and testifying at the protective custody hearing,
Churchill was not subject to criminal prosecution, nor was she in any way at risk of losing her
3 This section gives the juvenile court authority to hold a protective custody hearing upon motion from any party when a child is “alleged to be in need of care and treatment because . . . the parents . . . neglect or refuse to provide proper support . . . or other care necessary for [the child’s] well-being.” Section 211.031.1(1)(a).
6 physical liberty. 4 The purpose of the protective custody hearing was neither to adjudicate
Churchill’s rights nor to determine whether she was guilty of any offense. Rather, Churchill was
summoned to appear at the protective custody hearing so that the juvenile court could determine
whether Churchill was the parent of the child in question, and, if so, where the child was located.
The fact that Churchill was later prosecuted for the giving of false testimony at the protective
custody hearing does not affect whether Churchill was constitutionally entitled to counsel at the
time she gave the false testimony because the right to counsel only attaches once adversary
judicial criminal proceedings have been initiated. See Washington, 9 S.W.3d at 675.
Accordingly, because the protective custody hearing was a civil proceeding that did not
put Churchill’s physical liberty in jeopardy, she had no constitutional right to counsel at the
hearing.
B. Statutory Right to Counsel
Having determined that Churchill enjoyed no constitutional right to counsel at the
protective custody proceeding, we now address whether she was denied her right to counsel at
such hearing under Section 211.111 and the related Missouri Supreme Court Rule 115.01.
Finding no authority directly on point, we treat this matter as a case of first impression.
To determine whether Churchill was entitled to counsel under Section 211.211, we must
interpret and apply the juvenile code, Chapter 211 RSMo. “The primary rule of statutory
interpretation is to ascertain the intent of the legislature from the language used, to give effect to
that intent if possible, and to consider the words in their plain and ordinary meaning.” State v.
McLaughlin, 265 S.W.3d 257, 267 (Mo. banc 2008) (internal quotations omitted). In
4 We contrast Churchill’s circumstances with that of an individual not accused of a crime but nevertheless at risk of losing her liberty. For example, where an individual is accused of indirect contempt, the trial judge must predetermine whether the nature of the infraction is of sufficient gravity to warrant the imposition of imprisonment if the accused is found guilty and, if so, advise the accused of her right to counsel and provide an adequate opportunity for her to obtain representation. Hunt v. Moreland, 697 S.W.2d 326, 330 (Mo. App. E.D. 1985).
7 determining the intent and meaning of statutory language, the words must be considered in
context, and similar sections must be considered in order to arrive at the true meaning of the
statute. S. Metro. Fire Prot. Dist. v. City of Lee’s Summit, 278 S.W.3d 659, 666 (Mo. banc
2009).
We are also guided by the legislature’s instruction that Chapter 211 “shall be liberally
construed . . . to the end that each child coming within the jurisdiction of the juvenile court shall
receive such care, guidance and control as will conduce to the child’s welfare and the best
interests of the state . . .,” as well as the stated purpose of Chapter 211, which is “to facilitate the
care, protection and discipline of children who come within the jurisdiction of the juvenile
court.” Section 211.011.
Section 211.211.1 plainly states that “[a] party is entitled to be represented by counsel in
all proceedings.” Section 211.211.6 further specifies that “[c]ounsel shall serve for all stages of
the proceedings . . . unless relieved by the court for good cause shown.” Rule 115.01(a) mirrors
the language of Section 211.211 and also provides that “[a] party is entitled to be represented by
counsel in all proceedings.”
We find the language of Section 211.211 clear and unambiguous. The statute grants an
unconditional right to counsel to any party to a juvenile court proceeding and for all stages of the
proceeding. The express language of the statute places no limitation on a party’s right to counsel
and we are aware of no judicial decision limiting the right to counsel provided by the legislature
in Section 211.211. When considering the words used in Section 211.211, and giving the words
their plain and ordinary meaning, the only reasonable interpretation of the statute is that the
legislature granted Churchill, as a party to the protective custody hearing, an absolute right to
counsel. Consistent with this statutorily granted right, Rule 123.05 further clarifies the right to
8 counsel in protective custody hearings. 5 Notably, subsection (d) of Rule 123.05 provides that
“[a]t the protective custody hearing, the court shall inform the juvenile’s parents, guardian or
custodian of the right to counsel, including the right to appointed counsel pursuant to Rule
115.03.” As a party to the protective custody hearing, Churchill was entitled to advice of
counsel. The record clearly shows that Churchill invoked her right to counsel prior to testifying,
but was forced by the trial court to testify before she was allowed to consult with an attorney.
Given the specific facts before us, we agree that the manner in which the juvenile court handled
Churchill’s request for counsel violated her right to counsel under Section 211.211.
However, our analysis of Churchill’s point on appeal does not end with a finding that she
was denied her right to counsel provided under Section 211.211 and Rule 123.05. We must now
consider whether suppression of Churchill’s juvenile court testimony in her perjury trial is
mandated as a result of the violation of her statutory right to counsel. We hold that it is not.
As stated above, we treat this matter as a case of first impression. We find no Missouri
cases addressing the suppression issue presented by Churchill in this appeal. Churchill reasons
that the violation of her right to counsel at the juvenile hearing mandates the suppression of any
testimony she gave after invoking her statutory right to counsel, even if such testimony is false
and perjurious. Given the well-established federal case law rejecting this argument in connection
with alleged violations of a defendant’s constitutional rights, we soundly reject Churchill’s
argument.
Almost 40 years ago the U.S. Supreme Court categorically rejected the notion that a
person was protected from prosecution for perjury through suppression of evidence where the
perjurer complained that the government exceeded its constitutional powers in making the
5 Section 211.032 authorizes the Missouri Supreme Court to promulgate rules for the implementation of mandatory court proceedings under Section 211.031(1), which includes the protective custody hearing at issue here.
9 inquiry that produced the perjurious testimony. United States v. Mandujano, 425 U.S. 564, 576-
77 (1976). Although Mandujano involved a motion to suppress testimony taken before a grand
jury, this factual distinction is inconsequential to the underlying issue of whether perjurious
testimony is inadmissible when obtained in violation of a defendant’s constitutional rights. A
year later, the Supreme Court reaffirmed its holding in Mandujano in United States v. Wong, 431
U.S. 174, 178 (1977), holding that a violation of a person’s Fifth Amendment privilege does not
protect that person from prosecution for perjury. Since Mandujano and Wong, other federal
courts have similarly concluded that violation of a defendant’s constitutional rights guaranteed
by the Fifth and Sixth Amendments does not require exclusion of the defendant’s false testimony
in a subsequent prosecution for perjury. See, e.g., United States v. Kennedy, 372 F.3d 686, 688
(4th Cir. 2004) (“[the defendant’s] remedy for any Fifth or Sixth Amendment violations does not
encompass exclusion of his false testimony from his perjury trial. Courts cannot condone
perjury as a self-help remedy against constitutional violations.”). We find the reasoning of the
U.S. Supreme Court and other federal courts that a defendant cannot immunize acts of perjury
when the false statements were obtained in violation of a defendant’s constitutional rights
instructive. 6
Churchill testified at the hearing without advice of counsel despite her repeated requests
for counsel. This Court does not condone the denial of Churchill’s right to counsel under
Section 211.211 and Rule 123.05. However, the suppression of the perjurious testimony
obtained following the violation of that right is simply not a remedy available to Churchill. As
noted by the U.S. Supreme Court in Mandujano, “[I]t cannot be thought that as a general
6 Although the seminal case of United States v. Mandujano addressed only the violation of a defendant’s rights under the Fifth Amendment right against self-incrimination, the reasoning of the Supreme Court’s holding is not limited to violations of the Fifth Amendment, but equally applies to violations of a defendant’s Sixth Amendment right to counsel. See id.
10 principle of our law a citizen has the privilege to answer fraudulently a question that the
Government should not have asked. Our legal system provides methods for challenging the
Government’s right to ask questions -- lying is not one of them.” 425 U.S. at 577 (quoting
United States v. Knox, 396 U.S. 77 (1969)).
“The distinction between rights and remedies, a classic feature of our legal system, is
particularly important in the context of the procedural rights afforded to criminal defendants.
The sweep of exclusionary rules is far from absolute, as courts have found illegally obtained
evidence to be admissible for some purposes.” Kennedy, 372 F.3d at 693. The federal courts
have consistently held that perjury is not a permissible way of objecting to government
questioning that violates an individual’s constitutional rights. Wong, 431 U.S. at 180. We reject
the argument that Churchill is entitled to suppression of her perjurious testimony as a result of
the violation of her statutory right to counsel when suppression would not be an available
remedy for a violation of her rights under the Fifth and Sixth Amendments to the U.S.
Constitution.
C. Right Against Self-Incrimination
Churchill next contends that her juvenile court testimony should have been suppressed
because it was obtained in violation of her Fifth Amendment right against self-incrimination.
Specifically, Churchill contends that her perjurious testimony was unconstitutionally compelled
because she was not advised of her Fifth Amendment right not to incriminate herself. Even if
Churchill’s constitutional right against self-incrimination were applied to the facts of this case
(which we do not decide), we reject her argument that a violation of that right requires
suppression of her juvenile court testimony. As noted in the discussion above, this argument has
been expressly rejected by the U.S. Supreme Court in Mandujano and its progeny.
11 The trial court did not err in failing to suppress Churchill’s testimony from the protective
custody hearing and admitting the testimony into evidence at her trial for perjury. Point One is
denied.
II. The judgment of the trial court is supported by sufficient evidence.
Having determined that the trial court properly admitted Churchill’s juvenile court
testimony into evidence, we now consider Churchill’s second point on appeal which addresses
whether her conviction for perjury was supported by sufficient evidence.
Churchill first argues that her testimony, even if false, was not sufficiently material to
support a conviction for perjury. Churchill reasons that regardless of whether the juvenile court
believed or disbelieved her false testimony that she did not have a child sought by the subpoena,
she eventually would have been required to relinquish custody of her son once the juvenile court
issued a capias warrant for her arrest under Section 211.121. Churchill suggests that, for this
reason, her false testimony did not and could not substantially affect the outcome of the
protective custody proceeding and was therefore not material to the proceeding. We reject this
circuitous argument.
A person commits the crime of perjury when, “with the purpose to deceive, [she]
knowingly testifies falsely to any material fact upon oath or affirmation legally administered, in
any official proceeding before any court, public body, notary public or other officer authorized to
administer oaths.” Section 575.040.1. “A fact is material, regardless of its admissibility under
rules of evidence, if it could substantially affect, or did substantially affect, the course or
outcome of the cause, matter or proceeding.” Section 575.040.2.
At trial, Judge Wilson testified that the protective custody hearing involving Churchill
“was a unique circumstance” because the court “had not established there was a child yet in need
12 of protection.” Judge Wilson went on to explain that “our only two purposes in [the] hearing
was [sic] to determine if there was a child and determine where that child was.” Because the
sole purpose of the proceeding was to determine the very existence of Churchill’s son,
Churchill’s statements denying she had a son clearly could have substantially affected the course
or outcome of the proceeding and were therefore material.
Contrary to Churchill’s assertion, Section 211.121 did not require Judge Wilson to issue a
capias warrant when Churchill failed to bring Joshua to the hearing. Section 211.121 reads, in
full:
If any person summoned by personal service fails without reasonable cause to appear, he may be proceeded against for contempt of court. In case the parties fail to obey the summons or, in any case when it appears to the court that the service will be ineffectual a capias may be issued for the parent or guardian, or for the child.
Under the plain language of Section 211.121, the issuing of a capias warrant following a party’s
failure to obey a summons is permissive, not mandatory. Accordingly, had Churchill maintained
her deception, and not delivered her child to the juvenile officer, it is possible that the child who
was the subject of the protective custody hearing could have remained in Churchill’s custody
indefinitely and would not have received the care and protection he needed. Without question,
Churchill’s false testimony could have affected the outcome of the protective custody hearing
and was material to that hearing.
Churchill next asserts that her false testimony cannot support a conviction for perjury
because she effectively retracted her false testimony when she later brought her son to the
juvenile authorities. Arguing that retraction is a complete defense to perjury, Churchill submits
the trial court erred in denying her motion for judgment of acquittal.
13 In the Missouri Court of Appeals Eastern District DIVISION THREE
STATE OF MISSOURI, ) No. ED99261 ) Respondent, ) Appeal from the Circuit Court of ) Monroe County vs. ) ) Honorable Rachel Bringer Shepherd BRENDA CHURCHILL, ) ) Appellant. ) Filed: March 4, 2014
DISSENT
I respectfully dissent. I conclude that because Churchill’s right to counsel under Section
211.211 and Rules 115.01(a) and 123.05(d) was violated during the protective custody hearing,
her testimony which resulted in the criminal perjury charges against her, should have been
suppressed. I find this case distinguishable from the cases utilized by the majority. Here, after
repeatedly requesting counsel, and being assured by the court she had a right to counsel,
Churchill was forced to testify under oath by the judge who informed her that anything done on
that day “would be a temporary matter”. She was given no notice that she had a right to not
testify and that anything said could be used against her later and no counsel to inform her of
such. As a result, Churchill’s compelled statements should have been suppressed as involuntary
and as a violation of her statutory and due process rights. I would reverse the judgment of the
conviction and four year sentence.
_________________________________ Mary K. Hoff, Presiding Judge