State v. Phillips

563 S.W.2d 47, 1978 Mo. LEXIS 347

• Court: Supreme Court of Missouri
• Decided: March 13, 1978
• Docket: 59379
• Status: Published

Opinions

HENLEY, Judge.

Kim Eugene Phillips (defendant), charged with and convicted of second degree murder, was sentenced in accordance with a jury verdict to 50 years in the custody of the Department of Corrections. On appeal to the Court of Appeals, Kansas City District, the judgment was reversed for error in admitting in evidence a written statement given by defendant to police officers, and the case was remanded for a new trial. We ordered the case transferred to this court on application of the State. We affirm.

The body of Karen Jones was found in her Sedalia apartment August 13, 1973. Her death was caused by strangulation.

Defendant, a 21 year old former Air Force enlistee, was among acquaintances of the dead woman questioned by police regarding their whereabouts the evening before discovery of the body. Defendant was a native of the state of California and graduated from Pacifica, California high school in 1970. He had been stationed at White-man Air Force Base, but was living in Seda-lia at the time of the crime. He went to police headquarters of his own volition on the morning of August 15, 1973, where he was questioned by James Donley, a deputy sheriff. As a result of this questioning he agreed to take a polygraph test administered the next day (August 16) at Troop A headquarters of the State Highway Patrol in Lee’s Summit. The test was given by Merlin Buesing, a member of the State Highway Patrol. During a discussion of the test results defendant’s response to a question tended to incriminate him. Deputy Donley, who had driven defendant to Lee’s Summit that morning, observed the polygraph test and heard this discussion from an adjoining room. Later that day, between 6:30 and 7:00 p. m., at the Pettis county courthouse in Sedalia, defendant, in response to questions by Emmett Fairfax, Sheriff of Pettis county, made a statement confessing that he killed Karen Jones. This statement was reduced to writing, signed by defendant, and witnessed by Sheriff Fairfax and Patrolman Buesing.

Defendant moved to suppress all evidence of oral and written statements made by him to or within the hearing of the police officers regarding the killing of Karen Jones on the ground they were not made voluntarily, because he was not fully advised of or accorded rights guaranteed him by the federal and state constitutions¹ in that (1) he invoked but was denied the rights to remain silent and to have counsel present during his interrogation by police; (2) he was misled and tricked into making an incriminating statement by erroneous advice given him by Patrolman Buesing.

Two-thirds of the approximately 300 page transcript of the record is made up of evidence presented at the pretrial hearing of the motion. The motion to suppress was overruled. At a trial before a jury his oral admission to Patrolman Buesing at Lee’s Summit and his written confession were admitted in evidence over his objections.

James Donley, a deputy sheriff of Lafayette county and a member of the Metro Squad with headquarters at the courthouse in Sedalia, testified that defendant came to the Pettis county courthouse during the morning of August 15, 1973, to talk to someone regarding the Karen Jones homicide; that he was assigned to interview defendant and they went to a room adjacent to the courtroom for that purpose; that before interviewing defendant he “warned him of his rights” by reading to him from a card containing the Miranda warnings; that after informing defendant of his rights, he asked him whether he understood those rights and defendant replied that he did; that he also asked whether he wished “to talk to us now” and defendant said “he wanted to tell us or help us on the case if he could”; that he listened to what defendant had to say and at the end of the interview they agreed that defendant would take a polygraph test the next morning in Lee’s Summit; that defendant returned to the courthouse the next morning and they left for Lee’s Summit in the Deputy’s patrol car; that they did not discuss the Jones homicide case en-route.

Deputy Donley further testified that on arrival at Patrol Headquarters he introduced defendant to Corporal Merlin Bues-ing; that defendant and Corporal Buesing went into the polygraph room; that he went into an adjoining room from which he could see and hear the polygraph test without being seen or heard; that Corporal Buesing had a printed “waiver” form which had been prepared for the signature of a person who voluntarily submitted to a polygraph test; that the Miranda “rights” were printed on this form; that Corporal Bues-ing read and explained the rights to defendant; that defendant said he understood his rights and signed the waiver; that Corporal Buesing explained to defendant how the polygraph machine worked and then began the test; that near the end of the test, defendant said to Corporal Buesing that “he [Buesing] didn’t have to look any farther, he had his man * * that defendant said essentially the same thing to him (Donley) just before they stopped at a restaurant in Lee’s Summit enroute back to Sedalia late that afternoon.

Corporal Buesing testified that he and defendant read together and discussed the waiver form and defendant’s “rights,” as defined by Miranda, before the polygraph test was given; that he explained and they also discussed the polygraph procedure; that during their discussion he placed the waiver form in front of defendant for his signature; that defendant said “he didn’t know whether he should have an attorney or not”; that he (Buesing) “told him that this, he would have to decide before we went ahead”; that defendant then signed the waiver form, dated it, and wrote the hour of 11:30 or 11:45 a. m. next to the date, indicating and saying that he wanted to go ahead with the test; that he then gave defendant the polygraph test, which took about an hour or an hour and a half; that after the polygraph test was completed he (defendant) indicated to me that there was more he could tell me about the case, so “I asked him directly if we should be looking for other persons * * * and he indicated that we should not”; that at this point defendant mentioned that “he didn’t know if he should talk to an attorney or not”; that he reminded defendant that this was one of his rights and it was for him to decide whether he should; that defendant “thought a little bit and then we went ahead with our discussion”; that defendant did not at any time ask to see an attorney; that his attitude as to whether he wanted an attorney present was: “I don’t know,” I am “considering” the question.

Corporal Buesing further testified that at some time during the day, possibly near the end of their discussions, defendant mentioned that he had a friend in Sedalia named Greg Woods, who knew some good lawyers, and that “he might want to talk to •Greg Woods about talking to a lawyer”; that defendant asked him to make arrangements for him to talk to Greg Woods; that he talked to someone (not the sheriff) at the Metro Squad headquarters and told that person that defendant had “indicated we didn’t * * * need to look for another person involved in this thing”; that he also told this person that defendant had said he might want to talk to Greg Woods and had indicated he “might want to talk to a lawyer”; that he asked that the Metro Squad have Greg Woods available, if possible, at Squad headquarters when they (Deputy Donley, defendant, and Corporal Buesing) returned to Sedalia that evening.

Sheriff Fairfax testified that during the afternoon of August 16 he received information through the Metro Squad that defendant, Corporal Buesing and Deputy Don-ley were enroute to Sedalia and that defendant “may want to talk to a lawyer”; that there was no mention to him that day by anyone, including defendant, that defendant wanted to talk to a Greg Woods; that he met defendant in a jury room of the Pettis county courthouse sometime between 6:30 and 7:00 p.m. on August 16,1973; that he took a statement from defendant after first informing him of his Miranda rights by reading them from a card; that after explaining these rights to defendant he asked him whether he understood his rights; that defendant responded that he did; that after defendant said he understood, he (the sheriff) asked him whether he wished to talk to us now.

■ Defendant’s response to this question, according to the sheriff, and the next two questions and answers were as follows:

“A. He responded.he said he didn’t know whether he should talk to us at this time with.without before he.or without talking to a lawyer, some words to that affect. He said he didn’t know whether he should talk to us without talking to a lawyer.

“Q. What did you tell him, if anything, at that time?

“A. I told him that that was his right that he could have counsel, he could talk to a lawyer at any time that he desired and that further that he could also waive that right if he desired to talk to us about the Karen Jones murder.

“Q. What did he do at that time?

“A. Well he said he guessed that he would, and went on to talk to us about the afternoon of August the 12th and 13th of 1973 and about Karen Jones.”

Sheriff Fairfax further testified that as defendant talked of what occurred at Karen Jones’ apartment on August 12 and 13 and how he killed her, he (the sheriff) typed in narrative form the two-page statement which was admitted in evidence; that after the statement was finished, he went over it with defendant; that defendant made corrections by striking through words and initialing the parts he had stricken; that defendant then signed the statement in the presence of Corporal Buesing and him.

Sheriff Fairfax also testified that he got in touch with the prosecuting attorney that afternoon and told him that defendant “may” want to talk to a lawyer, not that defendant had “requested” a lawyer.

Gary W. Fleming, prosecuting attorney of Pettis county, testified that the sheriff talked with him the afternoon of August 16 about arranging to have an attorney available “ * * * should Kim Phillips want to talk to one”; that he contacted the county magistrate by telephone regarding the appointment of an attorney should defendant “want to talk to an attorney”; that the magistrate told him Adam Fischer was the attorney next on the list for appointment and that he (the prosecuting attorney) should contact Mr. Fischer direct and tell him that he was to consider himself appointed should it develop that defendant wanted to talk to an attorney; that he (the prosecuting attorney) contacted Mr. Fischer later in the day and determined where he could be reached that evening if he were needed, but he had no occasion to call Mr. Fischer that evening.

The defendant testified that he did not tell Corporal Buesing that “[he] didn’t know whether [he] should talk to an attorney,” that his exact words were: “I would rather talk to an attorney before answering any questions”; that he told Corporal Buesing this before he signed the waiver form and consented to take the polygraph test; that he talked to Corporal Buesing about Greg Woods “just before [he] signed the [waiver and consent form] * * *, when he [Bues-ing] asked me if I understood my rights [and] I told him yes and that I would rather speak to a lawyer before answering any more * * * or any questions”; that he did not mention Greg Woods again in Lee’s Summit after he signed the waiver and consent form that morning; that Corporal Buesing told him that afternoon that he had been in touch with the Metro Squad and had asked that Greg Woods be contacted and that he (Woods) “would probably be at the courthouse when we” returned to Sedalia.

Defendant further testified that after the polygraph test had been completed Corporal Buesing told him “that what [he] had answered had not corresponded to what the polygraph showed”; that his response to this was: “Well I.I didn’t say much of anything, shrugged, lifted my shoulders in acknowledgment and in question and he went on to ask me that.if.if I knew who had killed Karen Jones and I told him no and this was after the test was. was.well had dis.turned off the thing and disconnected the wiring from me. He asked me if I knew who killed her and I told him no I didn’t and then he asked me.he told me that according to what we have here you’re not telling me the truth and I says, well I’m.I’m telling you what I know and he says well we can make things a lot simpler if.if you come right out and tell me. He told me that it wouldn’t go against you in any way and that it wouldn’t be used against you in court * * * ”; that Corporal Buesing also told him, just before he told the corporal that he did not need to look any further for anybody, that “what I [had] told him couldn’t be used because it would be unconstitutional to convict a person on * * * the basis of a confession.”

Defendant further testified that they arrived at Sedalia at about 6:15 p.m. from Lee’s Summit; that Greg Woods was not there when they arrived; that he did not talk to Greg Woods that evening; that he told Sheriff Fairfax, in response to the sheriff’s reading to him his rights from a Miranda card, that he understood his rights and that he “would rather see an attorney before [he] answered any questions”; that he did not tell the sheriff that “[I] didn’t know whether [I] should talk to a lawyer”; that at this point the sheriff left the room and returned with a typewriter; that he then gave the sheriff a statement which the sheriff typed on two sheets of paper; that the sheriff went over the statement with him; that he did not read the statement, but it was read to him and “as we got to the mistakes I corrected them, lined them out and put my initials [where each correction was made]”; that he was reluctant to sign the statement and did not do so until “I told him [the sheriff] that I would rather see an attorney before signing it”; that he signed the statement and the sheriff and Corporal Buesing witnessed his signature; that there was “not any one of those rights * * * that [he] didn’t understand,” and that he “didn’t have any question about any of them."

In connection with defendant’s testimony that Corporal Buesing had told him that “it would be unconstitutional to convict a person bn the basis of a confession,” Corporal Buesing testified, on cross-examination, that he was “aware of” but “not familiar with” the “legal concept” that “a defendant cannot be convicted on the basis of an out of court statement alone unless a corpus delicti is established”; that “this was mentioned” during the discussions before defendant “indicated [we] didn’t have to look any further”; that he does not “recall exactly” what was said by him or defendant, but the “basic context” of what he said to defendant was: “that the Metro Squad was developing evidence in the case which was pointing more and more to him and that this evidence would be necessary in making a case against him * * * [that] there must be something besides his own admission.” He further testified, on cross-examination that both he (Buesing) and the sheriff told defendant “that he was going to have to decide” when defendant said, immediately after the sheriff read defendant’s rights to him, “that he didn’t know if he should talk to * * * a lawyer”; that he (Buesing) also asked him: “do you want a lawyer?” and he (defendant) “didn’t say he wanted one” and he did not say “he did not want one * * * he just indicated let’s go ahead.”

As stated, the motion to suppress was overruled, the court having found that defendant was fully advised of his rights under Miranda, that he freely, intelligently and voluntarily waived those rights, and that the oral and written statements made were voluntary and admissible in evidence. There is no claim here that either one of the statements was the product of coercion, threats, fear or promise of leniency.

Defendant’s points on appeal are that the court erred in overruling his motion to suppress and in admitting at the trial, over his objection, all evidence of (1) his oral incriminating statement to Corporal Buesing in Lee's Summit; and (2) his written statement made to the sheriff in Sedalia and oral statements elicited from him in the process of preparation of the written statement, all because these statements were not made voluntarily. Specifically, defendant’s contentions are that these statements were not made voluntarily, because he invoked his right to silence and to have an attorney present before and during interrogation in Lee’s Summit and thereafter before and during interrogation in Sedalia; that the police officers were required to, but did not, honor his request for the presence of counsel made before questioning began and during questioning.

In this connection, he relies² heavily upon language in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as follows:

“The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.” 384 U.S. at 444-445, 86 S.Ct. at 1612.

This court said in State v. Alewine, 474 S.W.2d 848 (Mo.1971) at l.c. 852:

“The question before the trial court at the conclusion of the hearing on the motion to suppress and again during the trial on defendant’s objection to the testimony of oral confession was whether the alleged statement was voluntarily given and, therefore, admissible in evidence. The question on appeal is whether the evidence was sufficient to sustain the trial court’s finding that the statement was voluntarily given;”

The evidence is clear that the police officers thoroughly informed defendant of his rights on at least three occasions, that he understood what they said to him about his rights, and that he knew his rights. His answer to one question demonstrates clearly not only that he knew and understood his rights as defined by Miranda,, but that he had committed them and their meaning to memory. The question and his answer are as follows:

“Q. Do you know what it was he read off that card?

“A. That I had the right to remain silent, that if I gave up the right to remain silent anything I could say would be used.could be used against me in a court of law, that I had the right to an attorney to have him present during the questioning, that if I did and so desired but could not afford one, an attorney would be appointed to me.”

The evidence is clear that defendant signed a paper waiving his rights and consenting to take the polygraph test before any questions were asked him about the homicide. The evidence is clear that after his confession to the sheriff of the murder of Karen Jones, he signed a paper recording the confession and declaring that he had “made no request for the advice or presence of a lawyer before or during any part of [the] statement.”

The evidence is conflicting as to whether he indicated that he did want to speak with an attorney and have him present during questioning by Corporal Buesing at Lee’s Summit and later by the sheriff in the presence of Corporal Buesing at Sedalia. Defendant testified, in substance, that he did not tell either of them that he did not know whether he should talk to an attorney, but, on the contrary, he told them he did want to talk to an attorney before he answered any questions. The trial judge resolved the credibility question presented by this conflict between the testimony of defendant and that of the sheriff and Corporal Buesing by accepting the officers’ testimony. Moreover, there is evidence, admitted at one point by defendant, that Corporal Buesing said to him that he (defendant) would have to decide, before they went any further, the question of whether he wanted an attorney present during the polygraph test. This and evidence of a similar answer by defendant in response to similar advice by the sheriff before questioning defendant in Sedalia, indirectly support the trial judge’s resolution of this credibility question.

Defendant takes the position that even the State’s version of what he said about whether he wanted an attorney present during interrogation at Lee’s Summit and later at Sedalia amounted to such an indication of his desire to consult with an attorney as to require the officers to discontinue questioning. He argues that the State’s version of what he said (“that he didn’t know if he should talk to an attorney or not”) together with his statement that he wanted to talk with Greg Woods about talking to a lawyer was such a clear, unequivocal expression of his desires as to require that there be no further questioning until he had been provided with a lawyer and time to consult with him.

The State takes the position that defendant’s statements to the police as to whether he wanted an attorney present, including his statement that he wanted to (or “might” want to) talk to Greg Woods about talking to a lawyer, were not indications that he did wish to consult with a lawyer; that they were indications only that he did not know whether he did or not, that he was “considering” whether he needed to, and had not decided.

The trial court accepted the State’s version of what defendant said and what he meant by what he said in the light of his admitted knowledge that he had the “right to have * * * [an attorney] present during the questioning * * and determined that defendant had not indicated (1) that he did wish to have a lawyer present, or (2) that he did not wish to be interrogated.

The court in Miranda, 384 U.S. at 483—485, 86 S.Ct. 1602, 1633, 16 L.Ed.2d 694 recognized the problem presented by the person advised of his rights who manifests indecision as to whether he desires counsel during interrogation. The court referred to and quoted from a letter from the Solicitor General which the court said “makes it clear that the present pattern of warnings and respect for the rights of the individual followed as a practice by the FBI is consistent with the procedure which we delineate today.” We quote from that part of the Solicitor General’s letter set out in the opinion (p. 485, 86 S.Ct. p. 1633) stating the Bureau’s practice in a situation not unlike that presented in this case:

“ ‘ “When the person who has been warned of his right to counsel decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point, * * *. It may be continued, however, as to all matters other than the person’s own guilt or innocence. If he is indecisive in his request for counsel, there may be some question on whether he did or did not waive counsel. [Emphasis added.] Situations of this kind must necessarily be left to the judgment of the interviewing Agent. For example, in Hiram v. U. S., 354 F.2d 4 (1965), the Agent’s conclusion that the person arrested had waived his right to counsel was upheld by the courts.” ’"

The police officers in this case concluded that defendant had not indicated a desire for, but had waived counsel. These officers and defendant testified fully on this subject at the hearing on the motion to suppress. The trial judge who heard the testimony of all the witnesses and observed their demeanor at the hearing has reviewed the officers’ conclusion and has made his own judgment as to what defendant said to the officers and what he meant by what he said. His (the judge’s) conclusion was that defendant had not expressed a desire to consult with an attorney, but had waived that right. The evidence is sufficient to sustain that conclusion.

As to his incriminating reply to Corporal Buesing’s inquiry, “should [we] be looking for other persons?” defendant claims that the reply was produced by trickery and, therefore, was not voluntarily made. In support of this contention he relies upon the following language appearing in Miranda at pages 455 and 476, 86 S.Ct. at pages 1617, and 1629.

“ * * * When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. * * * The police then persuade, trick or cajole him out of exercising his constitutional rights. ******

“ * * * [A]ny evidence that the accused was threatened, tricked or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.”

Defendant testified that just before he made this reply, Corporal Buesing had told him that “what I [had] told him [Buesing] couldn’t be used because it would be unconstitutional to convict a person on * * * the basis of a confession.” Corporal Bues-ing testified that before defendant indicated by his reply that “[we] didn’t have to look any further,” he stated to defendant that the Metro Squad was developing evidence which pointed toward him as the murderer and that “there must be something besides his own admission.”

Defendant contends that this is the “false legal advice” and “trickery” which produced his reply. Of course, defendant has not shown that the “advice” given was false. Assuming that the reply was produced by trickery, this does not necessarily make the reply involuntary and, therefore, inadmissible in evidence. Defendant does not contend that his will was overborne as a result of Corporal Buesing’s statement. The evidence supports the trial court’s conclusion that this incriminating reply was in fact voluntary, and in these circumstances, we will not say that the trial court erred in overruling the motion to suppress and in admitting the reply in evidence. Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); State v. Stubenrauch, 503 S.W.2d 136, 138[3, 4] (Mo.App.1973).

As indicated, we determine that the evidence was sufficient to sustain the trial court’s finding that defendant’s oral and written statements to the police were made voluntarily. The court did not err in overruling the motion to suppress and in admitting these statements in evidence.

The judgment is affirmed.

MORGAN, C. J., and PINCH, DONNELLY and RENDLEN, JJ., concur. BARDGETT and SEILER, JJ., dissent in separate dissenting opinions filed.

1 . He refers to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.ct. 1602, 16 L.Ed.2d 694 (1966), and to Mo.Const. Art. I, § 10.

2 . He also relies upon the following cases which we have considered: Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); State v. Stevenson, 523 S.W.2d 349 (Mo.App.1975); Combs v. Wingo, 465 F.2d 96 (6th Cir. 1972); United States v. Priest, 409 F.2d 491 (5th Cir. 1969); United States v. Clark, 499 F.2d 802 (4th Cir. 1974); Camley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); State v. Falbo, 333 S.W.2d 279 (Mo.1960); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); State v. Mudgett, 531 S.W.2d 275 (Mo.banc 1975).