State v. Harris

Missouri Court of Appeals

State v. Harris

305 S.W.3d 482, 2010 Mo. App. LEXIS 242, 2010 WL 711210

Missouri Court of Appeals·Decided March 2, 2010·No. ED 91935·Published·Cited by 25 cases

Opinion

*484 PER CURIAM.

Rebecca Lynn Harris (“Defendant”) appeals from the judgment upon her conviction by a jury of one count of second degree assault, Section 565.060, RSMo 2000 1 Defendant argues the trial court erred in (1) denying her motion to suppress statements, (2) overruling her counsel’s motion to exclude the late endorsement of witnesses, (3) allowing the video deposition of the State’s expert witness to be played for the jury without redacting the witness’s legal conclusion, and (4) allowing the double hearsay testimony of Detective James Presson (“Detective Pres-son”). We reverse and remand.

In the light of the record viewed in its entirety, the following facts were adduced at trial. Caprina (“Mother”) and Aaron (“Father”) Wakefield hired Defendant as an in-home nanny for their two children, A.W., who was about two years old at the time of the incident, and the victim, who was about four months old at the time of the incident. Defendant began working for Mother and Father on October 1, 2007.

On October 26, 2007, Defendant arrived for work at about 1:30 p.m. Father talked to Defendant about the children’s activities for that day, which included nothing out of the ordinary.

At 4:56 p.m., Defendant called 911 because the victim was not breathing. After paramedics arrived, the victim was transported to the hospital. The victim sustained serious injuries.

Later in the evening of October 26, 2007, Detectives Presson and Jay Hultz contacted Defendant at her boyfriend’s house to try to find out what had happened that day. Defendant gave the detectives the sequence of events that day, and she stated that when she realized something was wrong with the victim, she blew in his face and gently shook him trying to get him to respond. Defendant also agreed to go to the police station to give a written statement.

Defendant was later arrested on November 29, 2007 and was taken to the police station. Detective Presson placed her in an interview room and explained her constitutional rights to her using a form prepared by the prosecutor’s office. Defendant then talked at length to the detectives.

Subsequently, Defendant filed a motion to suppress arguing that she was questioned without being adequately advised of her rights. This motion was denied after an evidentiary hearing. The video of Defendant’s interrogation was played for the jury and her written statement was admitted into evidence at trial.

Defendant was convicted of one count of second-degree assault and was sentenced to seven years of imprisonment and received a fine of $3,000.00. This appeal follows. 2

In her first point, Defendant argues the trial court erred in denying her motion to suppress statements and in admitting the statements at trial because the admission of such statements was in violation of Defendant’s right to be free from self-incrimination and her right to counsel. 3 Defendant maintains the statements were made while she was being interrogated by Detective Presson and after she *485 had requested counsel several times throughout the interrogation. We agree.

We will affirm the trial court’s ruling on a motion to suppress unless the ruling was clearly erroneous. State v. Williams, 277 S.W.3d 848, 851 (Mo.App. E.D.2009). If the ruling is plausible, in light of the record viewed in its entirety, we will not reverse, even if we would have weighed the evidence differently. Id. We defer to the trial court’s superior opportunity to determine the credibility of witnesses and to make factual findings. State v. Haslett, 283 S.W.3d 769, 783 (Mo.App. S.D.2009). We review questions of law de novo. Id. We review the factual findings only to determine if they are supported by substantial evidence, viewing the facts in the light most favorable to the trial court’s ruling and disregarding contrary evidence and inferences. Williams, 277 S.W.3d at 851. At trial, the State has the burden of production and persuasion to show by a preponderance of the evidence that a defendant’s motion to suppress should be overruled. State v. Ramires, 152 S.W.3d 385, 395 (Mo.App. W.D.2004).

To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, the police must terminate their interrogation of an accused in custody if the accused requests the assistance of counsel. State v. Harrison, 213 S.W.3d 58, 68 (Mo.App. S.D.2006); see also Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)(where the Court found if an accused invokes her right to counsel, all interrogation must cease until the Defendant consults with a lawyer, unless the accused initiates further communications with the police). The accused cannot be subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Id. Officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney. Id.

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