State v. Tolliver

561 S.W.2d 407, 1977 Mo. App. LEXIS 2738
CourtMissouri Court of Appeals
DecidedDecember 27, 1977
DocketNo. KCD 29034
StatusPublished
Cited by10 cases

This text of 561 S.W.2d 407 (State v. Tolliver) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tolliver, 561 S.W.2d 407, 1977 Mo. App. LEXIS 2738 (Mo. Ct. App. 1977).

Opinion

WASSERSTROM, Judge.

Defendant appeals his conviction by a jury of robbery in the first degree. At the time of the offense charged, defendant was 15 years of age.

The evidence shows that at about 10:30 p. m. on January 2, 1976, defendant assaulted Ted Williams and took from him a ring, a watch and a gun. The next evening defendant was arrested. The arresting officers called into police headquarters for a juvenile officer to be on hand to take custody of defendant. Juvenile officers Wood and Fridell were at the police station at the time, and they received a call from the front desk to wait until defendant was brought in. The arresting officers did arrive at sometime between 7:15 and 7:40 and delivered defendant manacled to Wood and Fridell.

The juvenile officers immediately took defendant to the assembly room in the police station where they removed the handcuffs and proceeded to search defendant and pat him down for weapons. They proceeded to read him a Miranda warning and explain it to him. They then took information from defendant sufficient to fill out a “juvenile sheet.” Part of the information so taken was the telephone number of defendant’s mother, whom the juvenile officers then called. The party answering identified herself as defendant’s mother and said she would come to the police station. When she did not arrive, a second call was placed 10 or 15 minutes later. When she still did not arrive at the police station, a third call was placed 15 to 20 minutes after the second call. In the meantime, the juvenile officers gave defendant a certain amount of “orientation” which consisted of telling him “what things are all about, that he is in the police station, he is in the conference room, that there may be a policeman talking to him, that we are juvenile officers.”

By 8:30 p. m. the mother had still not arrived, and the juvenile officers then announced to Detective Thomas that he was free to take defendant’s statement and they requested Thomas to do so. The juvenile officers introduced Thomas to defendant as a policeman and stated to the defendant that Thomas was there in a different capacity than they were. Thomas then proceeded to give an additional Miranda warning and proceeded to take a statement from defendant. The statement constituted a full confession, and at the same time defendant turned over the ring and watch which he had taken from Williams. He also disclosed where he had thrown the gun and he took Thomas, Wood and Fridell to that place on Messanie Street.

Defendant assigns eight points of error on appeal, but we reverse solely on the proposition that the statement taken from defendant occurred under circumstances which violated his constitutional rights. This determination makes it unnecessary to pass upon the other unrelated points argued on this appeal.

The crucial issue as to the validity of defendant’s waiver of his constitutional rights under the appropriate standards was not squarely raised by defendant in his motion for new trial nor is it so raised in his Points Relied Upon. His Points Nos. IV and V do, however, come close. His Point IV does set forth some of the appropriate [409]*409factors, but this Point directs its attack at compliance with the Juvenile Code rather than to compliance with constitutional guarantees. Defendant's Point V directs itself to violation of constitutional protection, but this point specifies incorrect reasons. Giving these Points a liberal interpretation, Points IV and V in combination can be construed as adequately presenting the issue upon which this opinion is based. In any event, even if for technical reasons the issue has not been perfectly raised, consideration is nevertheless proper under the plain error doctrine set forth in Rule 27.-20(c).

The starting point for discussion of this constitutional issue is the consideration stated in Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), where the United States Supreme Court pointed out that “[a]ge 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces.” In light of that consideration, the law required special protection to a young teenager who is to be subjected to police interrogation, so as to place him so far as possible on a plane of equivalence with an adult. A key measure of such protection has been the creation of a procedure to provide the presence of an attorney, parent or similar adult friend. The reason for this standard of protection was set forth in Gallegos v. State of Colorado, 370 U.S. 49, 1. c. 54-55, 82 S.Ct. 1209, 1212-1213, 8 L.Ed.2d 325 (1962):

“He [the juvenile] cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions. He would have no way of knowing what the consequences of his confession were without advice as to his rights — from someone concerned with securing him those rights — and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself. A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not. Adult advice would have put him on a less unequal footing with his interrogators. Without some adult protection against this inequality, a 14-year-old boy would not be able to know, let alone assert, such constitutional rights as he had. To allow this conviction to stand would, in effect, be to treat him as if he had no constitutional rights.”

The failure in Gallegos to provide such adult support to the juvenile was there held, along with other factors, to show a deprivation of constitutional protection under the “totality of circumstances.”

The State urges in the present case that the two juvenile officers should be considered as defendant’s “adult friends” within the foregoing rule. That contention cannot be accepted, at least under the facts of this case. Juvenile officers Wood and Fridell considered themselves to have only a very limited duty, confined largely to explaining the Miranda warning, notifying a parent, and preventing any open and obvious improper treatment of the juvenile by the police. In actuality that is essentially all that the juvenile officers did here. They merely made an academic explanation of defendant’s rights without any attempt to relate those rights to the facts of defendant’s case. Indeed, the only information which those two juvenile officers took from defendant was the bare information necessary to complete the juvenile record. They made no inquiry at all as to the facts of the alleged criminal activity for which the defendant had been arrested, and without this information they could not possibly give defendant any meaningful advice or the type of concerned help contemplated by Gallegos.

Neither of these men had even had any previous acquaintanceship with this young boy; and from the face of the record, they made no serious attempt to establish any meaningful friendly relationship with him. Had they done so, they would almost surely have found out that defendant had not [410]*410lived with his mother since the time he was six months old, but instead lived with his grandmother.

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Bluebook (online)
561 S.W.2d 407, 1977 Mo. App. LEXIS 2738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tolliver-moctapp-1977.