Case Information
*1 In the Missouri Court of Appeals Eastern District DIVISION FOUR
STATE OF MISSOURI, ) No. ED100065
) Respondent, ) Appeal from the Circuit Court ) of St. Louis County vs. ) 10SL-CR08418-01 )
DERRICK WILSON, ) Honorable Michael D. Burton
) Appellant. ) Filed: November 25, 2014
Derrick Wilson appeals the judgment entered upon a jury verdict convicting him of two counts of first-degree statutory sodomy and one count of first-degree child molestation. We affirm.
I. BACKGROUND
A. Evidence Adduced at Trial
Wilson was charged with two counts of first-degree statutory sodomy and one count of first-degree child molestation. The following evidence was adduced at Wilson’s jury trial.
In September 2010, Wilson was living in an apartment with his girlfriend and two of her children, eleven-year-old B.S. and her nine-year-old brother. The children’s older sister, seventeen-year-old A.S., would also sometimes stay the night in the apartment.
On the evening of September 19, 2010, all three children were sleeping in the same bedroom. A.S. and her brother were in the bed, and B.S. was on the floor. At one point, A.S. *2 woke up and saw Wilson’s head in between B.S.’s legs and heard Wilson licking and moaning. One of B.S.’s legs was up in the air and the other leg was down, and Wilson’s hands were “underneath [B.S.’s] back, butt area.”
A.S. did not immediately know what to do, and she stayed in bed for about five minutes. When A.S. got out of bed, Wilson jumped up and said “good morning.” Later that night, A.S. went to her grandmother’s house, A.S. told her grandmother what she had seen, and the police were contacted.
Wilson was arrested at about 11:00 p.m. on the night of the incident and was subsequently interviewed by police. During the interview, Wilson admitted he touched B.S.’s breasts. Wilson also admitted he placed his finger inside B.S.’s vagina and placed his tongue on B.S.’s vagina on two separate occasions, including once when B.S. returned from a trip to Florida.
On the day following the incident, B.S. was examined at the hospital and a sexual assault kit was collected. The exam revealed that B.S. had a sexually transmitted disease that could be transferred by oral sex. Additionally, a DNA analysis showed that male DNA consistent with Wilson’s DNA was on B.S.’s underwear.
B.S. was interviewed at the Children’s Advocacy Center. During the interview, B.S. stated that Wilson touched her on her “private” between her legs and on her chest on two occasions, and that he placed his finger inside her. B.S. also stated that she felt Wilson’s head moving between her legs when she was asleep.
B.S. testified at trial that Wilson touched her chest. She also testified that Wilson put his fingers inside her vagina and put his mouth on her vagina on two separate occasions, once when she came back from a trip to Florida and again in September 2010.
B. Relevant Procedural Posture Including Wilson’s Motion to Suppress
Prior to Wilson’s jury trial, he filed a motion to suppress his statements to the police. The following evidence regarding Wilson’s interview with police was adduced at the hearing on his motion to suppress and at trial.
Detective David Rohlfing testified that at approximately 4:00 a.m. on September 20, 2014, he began his interview of Wilson by asking him general background questions designed to “build a rapport.” Specifically, Detective Rohlfing asked Wilson his date of birth, the spelling of his name, his Social Security number, where he worked, where he lived, and what kind of car he drove. The questions did not elicit any incriminating information from Wilson.
Three minutes after asking Wilson general background questions, at 4:03 a.m., Detective Rohlfing read Wilson his Miranda rights. Wilson verbally indicated that he understood his rights and also signed a form at 4:04 a.m. acknowledging that he understood his rights. Detective Rohlfing testified that Wilson’s rights were given before he asked Wilson any incriminating or “guilt-seeking questions” or “any questions about the crime[s].”
After Wilson indicated he understood his rights, Detective Rohlfing questioned Wilson about whether he had any sexual contact with B.S., but Wilson denied that any improper contact had occurred. Detective Rohlfing exited the interview room, and Captain Timothy Fagan went into the interview room and began questioning Wilson. Wilson eventually admitted to Captain Fagan that he touched B.S.’s breasts, and Wilson admitted he placed his finger inside B.S.’s vagina and placed his tongue on B.S.’s vagina on two separate occasions.
After the hearing on Wilson’s motion to suppress, the trial court entered an order denying the motion. In its order, the trial court found that “[w]ithin three minutes of the interview (essentially after making introductions), Rohlfing read [Wilson] his rights. Without *4 hesitation, [Wilson] agreed to waive his rights, signing the standard waiver form that Rohlfing provided to him.” The trial court also found that “[t]here was nothing done that was coercive” and that Wilson’s statements to the police were “given voluntarily,” after Wilson understood and waived his rights.
Defense counsel objected when Wilson’s statements to police were introduced at trial, and the trial court overruled the objections. After the close of all the evidence, the jury found Wilson guilty of two counts of first-degree statutory sodomy and one count of first-degree child molestation. Wilson filed a motion for new trial which asserted the trial court erred in denying his motion to suppress. The trial court denied Wilson’s motion for new trial and sentenced Wilson to a total of seventeen years’ imprisonment. This appeal followed.
II. DISCUSSION
In Wilson’s sole point on appeal, he asserts the trial court erred in denying his motion to suppress and admitting his statements to the police wherein he confessed to the charged criminal conduct. We disagree.
Our review of a trial court’s denial of a motion to suppress is limited to a determination
of whether the decision is supported by substantial evidence.
State v. Byrd
,
Pursuant to
Miranda v. Arizona
,
In this case, Wilson argues the trial court erred in admitting his post- statements
to the police because Detective Rohlfing did not give Wilson warnings at the beginning
of the interview, before the detective asked Wilson general background questions in an effort to
build a rapport. To support his argument, Wilson relies on
Missouri v. Seibert
,
In , the defendant was arrested for murder and taken to the police station where she was questioned about the crime for thirty to forty minutes. . at 604-05. The officer deliberately withheld the warnings during this initial stage of questioning, and the defendant made incriminating statements regarding her involvement in the murder. . at 605- *6 06. The officer gave the defendant a twenty-minute break, and when he returned to the interview room, he turned on a tape recorder, advised the defendant of the Miranda warnings, obtained a waiver, and resumed questioning. Id . at 605. The officer confronted the defendant with her pre- warning incriminating statements, and the defendant repeated the incriminating information during the second half of the interrogation. Id . at 605-06. The defendant was charged with first- degree murder and filed a motion to suppress her pre- Miranda warning and post- Miranda warning statements. Id . at 605. At the suppression hearing, the officer testified he made a “conscious decision” to withhold the warnings and that he used an interrogation technique of “question first, then give the warnings, and then repeat the question ‘until I get the answer that she’s already provided once.’” Id . at 605-06.
At issue on appeal was the admissibility of defendant’s post- warning
statements, and a majority of the U.S. Supreme Court held that the statements were inadmissible.
. at 603, 617, 618, 622. Relevant portions of the Supreme Court’s
Seibert
decision consisted
of, (1) a plurality opinion authored by Justice Souter and joined by Justice Stevens, Justice
Ginsburg, and Justice Breyer; and (2) an opinion concurring in the result authored by Justice
Kennedy. . at 603-17, 618-22. Both the plurality and Justice Kennedy’s concurrence focused
on the fact that, in
Seibert
, a “two-step interrogation” took place, i.e., “a police protocol for
custodial interrogation that calls for giving no warnings of the right to remain silent and counsel
until interrogation has produced a confession . . . then issuing warnings . . . then leading
the suspect to cover the same ground a second time.”
See id
.;
Collings
,
Because Justice Kennedy’s concurrence in
Seibert
provided the narrowest rationale
[1]
for
finding the defendant’s post- warning statements were inadmissible, the Missouri
Supreme Court adopted Justice Kennedy’s concurrence as the test Missouri Courts use to
determine “whether a ‘two-step interrogation’ has occurred, rendering repeated statements made
to police admissible.”
Collings
,
In this case, a “two step interrogation,” as that term is defined by the U.S. and Missouri
Supreme Courts, was not used. Detective Rohlfing did not withhold the warnings until
Wilson confessed, then issue warnings, then lead Wilson to cover the same ground a second time
and have him repeat his incriminating statements. Instead, Detective Rohlfing began his
interview of Wilson by asking him general background questions (his date of birth, the spelling
of his name, his Social Security number, where he worked, where he lived, and what kind of car
he drove). These questions were designed to “build a rapport” and did not elicit any
incriminating information from Wilson. Three minutes after asking Wilson general background
questions, at 4:03 a.m., Detective Rohlfing read Wilson his rights. Wilson then waived
his rights, and subsequently confessed to involvement in the crimes. Because a two-step
interrogation process was not used,
Seibert
is inapplicable to the facts of this case.
See State v.
Hughes
,
Because
Seibert
is inapplicable, we must determine the admissibility of Wilson’s post-
warning statements pursuant to the standard set forth in
Oregon v. Elstad
,
It is an unwarranted extension of to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.
. . .
The relevant inquiry is whether, in fact, the second statement was [] voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. . at 309, 318.
In this case, Wilson only argues that the allegedly belated administration of the
Miranda
warnings renders his subsequent statements inadmissible; Wilson makes no claim that he was
coerced into giving his post- warning statements or that his waiver of his
Miranda
rights
was anything other than knowing and voluntary. Moreover, in finding that Wilson’s post-
statements were admissible, the trial court found, “[t]here was nothing done that was
coercive” and that Wilson’s statements to the police were “given voluntarily,” after Wilson
understood and waived his rights. In the absence of any contrary argument by Wilson,
we find the trial court could properly conclude that Wilson’s post- warning statements
were knowingly and voluntarily made and therefore admissible under the
Elstad
analysis.
See
Hughes
,
III. CONCLUSION
The judgment of the trial court is affirmed.
ROBERT M. CLAYTON III, JUDGE Patricia L. Cohen, P.J., and
Roy L. Richter, J., concur.
Notes
[1] “[W]here a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five
Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds.”
State v. Gaw
,