State v. Buckles

Missouri, Respondent, STATE of BUCKLES, Appellant.

Gurney Edward

No. 63808. Missouri,

Supreme Court of

En Banc.

Aug.

points appeal conflict Oldham, S.W.2d ap- original as an The case determined 10; V, peal, judgment Mo.Const. art. § in an which incor- will be affirmed porates majority opinion much of of Swofford, Judge. Senior appellant’s of facts in The statement upon accepted and brief is with the and record comparison transcript compliance with the to be in full deemed governing rule such statement. 13, 1978, Gurney Edward January On Interstate hitchhiking Buckles north on he 29 in Missouri when was Highway north Stewart, the eventual picked up by Donald Buck- this Stewart told victim of homicide. Sanborn, Minneso- way les he was on his ta, operation, and purchase newspaper case of accompany Buckles him asked agreed, Buckles automobile trouble. days, he the course of the next two over and then traveled Sanborn Stewart territory” “home returned to Buckles’s Missouri, January on City, around Forest this journey the course of During motel Stew- overnight stays, two involving in homo- participate art asked Buckles to acts, Buckles refused two sexual which (cid:127) separate occasions. Buckles’s at the trailer of Upon arriving friend, Book, eight located miles south Jim Missouri, opened Buckles his City, of Forest door, seat to reached around to the back around and turned backpack, retrieve his Ill., Amy Davis, Bloomington, Johnson hand; his a knife in find with Stewart appellant. sodomy. perform insisted Buckles Stewart orally refusing encountering but still After Gen., Ashcroft, Atty. Hon. John Neil insistence, swung his Buckles Stewart’s MacFarlane, Gen., Asst. Jefferson Atty. arm. striking backpack around Stewart’s City, respondent. In Buckles obtained ensuing struggle, couple of knife and Stewart stabbed PER CURIAM: of front, then out jumped times in the Gurney Edward Buckles was convicted out, car, and stabbed pulled Stewart second murder to for- degree and sentenced he was testified some more. Buckles ty years prison killing for the of Donald scared, mad, a little shocked expanded panel An of the Court Stewart. time. District, Appeals, affirmed the Western placed stabbing, Buckles Following case to this judgment; was certified car, rear dissenting body seat judge Court belief Stewart’s Missouri one of to the bank of the decision on several drove down majority’s River, which officers. The offi- January ice law enforcement contained chunks, and put body in the water. rob- cers then asked: “about Buckles removed “Yes.” bery?”, responded Stewart’s identification Buckles and took from his He had $10.00 coat. then were con- officers said there rolling considered the entire car into the cerning the whereabouts Donald Stew- river, utilize but decided to it to rob “some- art, and then furnished read aloud thing” part enable him to leave that printed warning and waiver Miranda the country. He call the authorities didn’t sign. rights, which Buckles refused to beard, he because hair and a long Buckles he did know Donald said teacher, victim was a therefore felt picture Stewart. to see a Upon request he would not be believed. He drove car Stewart, shown a photo- Buckles was Missouri Oregon, parked it across the graph of and was informed Stewart house, block from Earl Nash’s where he had trip Minnesota had been traced. Buckles cross-examination, staying. been On Buck- asked, became and tearful and emotional les testified he hadn’t discontinued the trip “No,” “Can we make a deal?” When told with Stewart after homosexual ad- he waiver then signed the Miranda and vances because of the winter weather. with and confessed his relations Stewart the homicide. day, next Buckles used Stewart’s car robbery a of the Farmers Bank in State 4, 1978, February County On the Holt Rosendale, He Missouri. fled to the state prosecutor charg- a felony complaint filed California, he apprehended where was 21, February Buckles murder. On and was later returned to the Jackson the magistrate Buckles wrote a letter to Jail County on robbery federal bank judge informing him his and indigency charges. requesting appointed April counsel. On 3,May 1978, year, pleaded On a body guilty was discovered same Buckles floating in the charge, Missouri River the Kan- sen- on federal bank was sas Joseph, side near years imprisonment, St. tenced to fifteen and Missouri. This body attorney was identified as that sent a on of Donald federal defense letter Stew- art means of dental this date the state authori- autop- prosecuting records. An sy performed was requesting speedy in Kansas ties a trial of the and sur- geon Thereafter, performing charge. the same Buckles was incarcer- testified he Reno, found “many penitentiary knife ated in a in El wounds” on both the federal front Oklahoma, and back of an detainer was body and lacerations and initial palms lodged Washington, D. C. with the attor- surgeon both hands. The 5, ney May stated his office On general’s that death was caused on “by 29,1978, was returned to laceration of the aorta caused December Buckles by a sharp County proceedings instrument” and that Holt for the homicide Stewart “was day already appointed. dead he and was On that placed when was counsel suppress water.” and to dismiss motions to evidence were filed. 3, 1978, On February while incarcerated 14, 1979,

at the County, jail Jackson Missouri on the On motions af- federal bank overruled robbery charge, suppress Buckles was and dismiss were Agent Holtslag; visited FBI ter and the case was Joseph preliminary hearing, Mis- souri Highway Sergeant Patrol An- circuit for trial. On Robert ordered to the court derson; charging Holt an County Hayz- Sheriff Melvin March information lett; He County capital and Andrew Reed Mil- Buckles with murder was filed. Sheriff ler. After and was arraigned introductions and Buckles’s indi- was counsel an application cation he would see want- on March 1978. He filed what officers ed, an interview to remand to place. prohibition, took Buckles in- for motion these new magistrate preliminary formed officers he had advised court for a by his March hearing federal defense counsel not to talk a motion to dismiss. On

26,1978, error, typing motions clerical or omitted re- suppress confession and police thereto, testimony you in relation find and believe quired finding, “If grounds to dismiss constitutional were a reasonable beyond from evidence filed. doubt,” paragraph etc. the first before amended the instruction. court 6, 1979, April hearing On held on was language so instruction as include this appli- the various and the motions it the jury. and reread overruled; prohibition cation were filed cause reset. On cause. A tion of summoned and robbery which was taken under advisement. hearing tion to filed to sure, der advisement. motion to On On during an April April defendant. remand, dismiss, suppress application were overruled suppress suppress mistrial 26,1979, voir 25, 1979, exhausted on dire any evidence of the bank May 7, A evidence was a jury panel was called evidence, discharged further second change except quash, declared and the 1979, jury challenges motions were of force disclo- for the on the venue and murder is moot. defendant panel taken after mo- mo- un- ly Instruction No. L.Ed.2d Similarly, not convicted a certain McQueen, complain cert. contentions became moot. instructed it record the 605[6] denied 384 U.S. to By 687; the degree of 399 S.W.2d the correction (Mo.App.1978), jury verdict and of that by7 giving so that it could be respect murder when the Eldridge, of an instruction on offense. State court and reread judgment In to first ^[3] S.Ct. no cases 564 S.W.2d position (Mo.1966), error state of proper degree cited. these the case was County. transferred to Grundy Grundy County

The trial commenced in on 1979, 13, II resulting June the in verdict and judgment. Appellant error to admis charges to bank rob relating sion of evidence the

I the after homicide. Evi bery day on the Appellant charges independent the in sub- dence of an and unconnected court erred mitting any degree first the crime prove murder instruction crime is inadmissible to (No. 7), motive, asserting there evi- to charged, was insufficient unless it tends establish accident, support intent, dence to it such submission because mistake or com absence of killing not shown that the embracing occurred mon the commis plan scheme or during felony, crimes, the commission of another multiple sion or the iden of related the erred rereading Reese, court in the v. tity person charged. State instruction to a of jury the after correction 1970). The test S.W.2d wording. the rele admissibility logical of is whether vancy particular the crime a separate of The record shows this case was sub- exception prove a material fact tends to mitted to the jury under instructions issue, requisite If this judicial question. a murder, capital degree, murder in the first clearly per be degree relevancy cannot murder degree second and man- ceived, enjoy the benefit should accused noted, slaughter. As jury found de- separate of a and the evidence the doubt guilty fendant of murder in the second de- Tillman, v. rejected. crime State and, gree present under procedure (Mo.1970); v. Fra State S.W.2d trials, 926[5] punishment bifurcated assessed his zier, (Mo.App. 550 S.W.2d 596-97[5-6] forty years imprisonment, ver- upon which the judgment dict was entered. following The record shows the

During reading of the instructions to the evidence in jury supports the admission of the court discovered that Instruc- murder, No. degree through question. tion 7 on first homicide, be employed Prior to the and balanced in such situation: told bank, (1) (2) reason going length delay; friends he to rob al (3) assertion of delay; defendant’s though it is clear whether Rosen- trial; (4) his speedy resulting to a specified; dale Bank was he had no auto prejudice guide- to the defendant. These available; mobile he transpor would need applied lines have been followed and tation to and from Rosendale because it was where Missouri in cases it is claimed viola- approximately miles he from where lived rights tion of a speedy defendant’s trial usually he stayed; killed Stewart Haddix, occurred. State 566 S.W.2d multiple means of stab wounds robbed also (Mo.App.1978). See 274[9] the bank the day using next Stewart Hollis, 137 (Mo.App.1979). As 584 S.W.2d car, it the having parked night the homi to the resulting prejudice matter vicinity cide in the of the bank for use as a defendant, Haddix, court in State car; “getaway” he exhibited the car keys to supra, principal declared factors to prior his friends to the robbery stated (1) prevention considered are: undue to them that he was too far into the rob incarceration; (2) or oppressive minimiza- out; bery plans get and, using the money (3) tion of limitation of de- anxiety; obtained he proceeded by air ability fendant’s to defend himself. flee to California. This evidence com Appellant claims that after had de- petent prove a “related crime” and was manded a trial of the speedy charge also evidence from which a reasonable in period elapsed of 15 months until he was ference intent, could be drawn as to motive brought first to trial. The record discloses premeditation to dispose of Stewart that he directed letter dated order to obtain car carry out the magistrate whom the before planned robbery. original complaint requesting filed counsel be him. represent On Ill April 1978, after guilty plea and sen- Appellant asserts his right constitutional charge, tence on the bank the as- to a speedy was trial him and accorded sistant who public rep- federal defender that his right due process to and counsel resented defendant in the federal case under both the United States the Mis- wrote attorney the then of Holt prosecuting souri provisions constitutional were violat- County and view of the asked in ed. lengthy sentence dismissal federal and,

the state be considered if charge dis- declined, A giv- missal was defendant en a speedy Respondent argues trial. The record shows that defendant’s the at no defendant time asked for or de- trial occurred approximately fifteen months trial, speedy pub- manded a federal the after the filing of the original complaint in lic representing defender was de- the magistrate alone, however, court. This fendant in the court and had action no does not support the charge that the trial in authority to act his behalf. court erred in failing pro to dismiss ceedings. argument interesting Each case While this where constitu is this it, means, point tional ingenious, by is raised somewhat no must be viewed appellant’s decisive of the contention. The against its record. passage charge months 15 between The courts have established well-defined ipso trial inordinate or is not facto an guidelines for the initial by consideration delay. lapses Longer unconstitutional trial court and review by appellate held of the time have been not a denial courts. to a trial. speedy constitutional See In v. Wingo, 514, Barker 407 U.S. (61 example Wingo, supra, for Barker v. 2182, Hollis, (1972), S.Ct. 33 L.Ed.2d 101 the months); supra, (21 State v. court set forth months). the basic considerations to Reno,

A The El attempt search of record in an transfer defendant from Oklahoma, fix the reason or for this 15-month proper request fault to Missouri under 1978, October, 1978, delay, questions. leaves May, some unanswered in rather than Accepting the let- public prevented federal defender’s no in- degree would have in his 25,1978, April Missouri, ter of as an adequate request in al- carceration since he was trial, a speedy part sentence, of the only ready or in serving 15-year 15-month that can be delay directly charged “anxiety.” his way minimized actions of state arose from unusual work delay prejudice Did trial to the 5, 1978, circumstances. May On then (consideration of defendant 4 in Barker County prosecuting attorney attempt- Holt Wingo, supra) ability in that his defend request ed to file a temporary custody thereby (consideration 3 himself was limited defendant under Man- Uniform Haddix, supra)l Law, datory Disposition of Detainers resulting re prejudice RSMo, 222.080, seq., et who was then in § prejudice ap reversal must be actual quire custody at the authorities federal parent on the record or reasonable infer Reno, El penitentiary at Oklahoma. Such speculative possible prejudice. ence —not request improperly sent to the office of Marion, 324, States U.S. United Attorney General of United States. (1971). 30 L.Ed.2d S.Ct. prosecutor left office and on October only Because defendant was witness newly appointed prosecuting at- surrounding the facts and circumstances torney of Holt re- County proper mailed a victim, he had confessed the death of El quest the federal authorities at Reno. prior urging trial and was self-de guilt County Defendant was returned to Holt fense, and he testified in substan because 29, 1978, December counsel was confession, prior his tial accordance with magistrate judge, motions were employed must be conclude speculation filed on defendant’s behalf. On incarceration prejudiced by that he was his 14,1979, overruled, were he was motions Reno, Oklahoma, during El the 6-month granted hearing and was preliminary County, of in Holt period involved instead bound to the circuit An infor- over court. Missouri. mation charging capital murder filed 5, 1979, March and defendant was formally Further, represented arraigned on March 1979. After the fil- December appointed counsel from motions, of various were heard and appeared be- personally the date when of, disposed trial, and his resulting first Missouri, magistrate fore the court mistrial, April commenced 1979. ably represented, He present date. was trial, proceedings, the and early both in the Thus it of the 15 appears displayed not on this His counsel appeal. months, months, 5,1978, May six to October also ingenuity, and but afford- only energy the result of the inadvertent permissi- defense every legal ed defendant filing and mistaken detainer proper ble under the law. the papers wrong with authorities. Under circumstances, such the first three tests or B guidelines Wingo, supra, in Barker v. did require charges the of the erred prosecution. Appellant dismissal court of last to dismiss because overruling The or fourth factor Barker Win- his motion supra, him trial go, prejudice bring to the defendant as failure of the state to the Haddix, by required further refined in within the time limits Section supra, State RSMo, (1) prevention provides of in that whenev- oppressive undue and 222.160 carceration; (2) against is a defendant anxiety; lodged minimization of er a detainer state, (3) he must ability (party) and limitation of in a imprisoned defendant’s sister himself, the days defend trial 180 of brought must be reviewed be within of light disposition of record. final request the date of his for record, the by the case As shown the letters appropriate delivered to the prose- (defendant’s request cuting officer and the court. of Appellant letter be and the of appointed) that counsel complied asserts further that he substan- 25, 1978, (assistant federal de April public the tially with terms of that law plea advice of defendant’s sen fender’s the state failed to bring him to trial within charge, request federal for dismiss tence on the specified by time the statute. trial) for did charge speedy al of state He asserts further error his overruling proce compliance with the constitute motion deprivation to dismiss as a his of requirements ap the Act. dural This federal constitutional because those parent on every counsel at stage critical of the prose- Reno, El custody was not in the dates cution, because counsel appointed was not course, nor, Oklahoma federal authorities for him (12/29/78) until eleven af- months him by detainer filed against had been ter his written request appointed coun- the state. (letter sel 2/21/78). dated attempt is that Appellant’s contention his Involved here is the procedure to fol- be compliance April at the letter of by lowed under the Dispo- Uniform Mandatory compliance be substantial should viewed as sition Law, 222.080, of Detainers Section et 180-day period, especial- time triggering seq., RSMo 1978. Section 222.160 thereof ly because was without state invokes the 180-day trial rule if triggered request counsel at the time and dur- by a proper request by followed the proper up incarceration until December procedures. He relies on ex rel. Saxton Moore, (Mo.App.1980), clear- request must: S.W.2d be caused to be deliv- ly distinguishable and not authoritative ered to the prosecuting officer appro- imprisoned here. with de- Saxton priate court where trial is sought; seek a time re- lodged tainer of his letter final and, disposition charges; final quest disposition. prosecution accompanied by a certificate the official responded containing ap- with a letter having custody of prisoner together These propriate forms for to fill in. with pertinent all information concerning were out returned to the prosecu- filled his incarceration. clearly provides The Act tion, appropri- no sent copy but to the petitioner deliver such notice accepted prosecution ate court. The then request official “having custody which was temporary custody ineffective him” who in turn is charged duty with the no of tem- delay and caused because offer to forward the request, together pris- issued porary custody supporting required, documents ap- stated, officials. The court 1.c. propriate prosecuting official and court good compliance, omitting faith substantial registered mail, receipt certified return “nothing oper- the Agreement’s essential to requested. 222.160, Section III. Article ation,” Act. trigger was sufficient Further, the Act specifically provides that court notify appropriate The failure to these procedures appropriate are and effec- ac- prosecution’s was held waived tive to running commence the of the 180- ceptance custody and stated intention day limit for trial when “a only detainer within bring therein defendant to trial lodged has been against prisoner.” Sec- The specified by Agreement. the time 220.160, tion (1). Article III a trial not preliminary prohibition, writ of These procedures are reasonable and days acceptance within of the being had 180 proper requirement in the interest of order notice of and waiver of temporary custody ly jurisdictional court, and custodial process. made appropriate properly to the Patterson, State 304, v. 508 S.W.2d absolute. 306[2] (Mo.App.1974); Savage, State v. 522 S.W.2d C 144, 147[2, (Mo.App.1975); State v. Solo 3] way, 688, 690[2, 603 (Mo.App. S.W.2d al- support of his Appellant asserts 3] right denial of leged unconstitutional 922 seen the victim in stages prosecution,

counsel at critical tist testified that, therefore, court erred prejudice poten- from the failure locate church and witnesses, limit sustaining tial failure to obtain a second state’s motion to pathological opinion testimony long-established nature rule as cases to known turbu- killing knife used in the and to locate cer- homicide-self-defense victim, reputation tain witnesses in Arizona who were not lent and violent unduly he characterizes as and later available or could not be located. which rule and one that “unreasonably restrictive” rule of is that the general law abandoned.” He asserts “should be defendant is to assistance of coun entitled precluded the trial court him under this rule sel at all stages prosecution, critical the victim presenting from evidence right this attached pleading stage. at the at the time he was killed was “insane” Alabama, 45, 55, Powell v. 287 U.S. 53 S.Ct. theory which corroborated the defendant’s (1932); 77 L.Ed. 158 v. Wainwright, Gideon was admissible rebuttal of self-defense and 335, 792, 372 U.S. 83 9 L.Ed.2d 799 S.Ct. the “state’s evidence victim’s evidence to (1963); Alabama, 1, Coleman v. 90 399 U.S. character.” On the issue self-de- good 1999, (1970); S.Ct. 26 L.Ed.2d 387 United fense there can be no doubt of rule 1926, Wade, 218, States v. 388 87 U.S. S.Ct. reputation evidence of deceased’s 18 (1967); L.Ed.2d 1149 v. Califor Gilbert is admissible as rel- turbulence and violence nia, 18 L.Ed.2d U.S. S.Ct. aggressor was the evant show who (1967); Quinn, v. State S.W.2d of dan- apprehension whether a reasonable (Mo. Alberts, 1980); State 604[10] existed; must be but such evidence ger (Mo.App.1975). S.W.2d 565[3] reputation testimony, proved general is Appellant’s persuasive. claim not violence, acts of specific purpose to counsel is to reputation show he knew of such must ensure a transcript fair trial. The shows apprehension. when the is reasonable issue two counsel who made extensive v. Maggitt, 517 S.W.2d State 107[1] motions, preparation, filed took pretrial Robinson, 556 1974); (Mo. banc State depositions, gave representa effective trial 73, 74[1, (Mo.App.1977); S.W.2d 2] tion effective trial work. The post Howard, 564 S.W.2d 76[7] prejudice charged the tem by appellant App.1978). porary lack of at stage counsel critical present rule Appellant contends the of the proceedings speculative at most. deprive unfairly of corrobo operated to That an pathological additional aggressor as who was the rative evidence may interviews with the unfound witnesses closing argument In in this homicide. defendant, prej have benefitted is not real emphasized that self-defense was udice, specula and to order newa trial on larger plausible in view of defendant’s tion that counsel could earlier-appointed stature, argued further physical provided have these is unwarrant benefits contends planned killing. Appellant was a ed. included fel proof, which that his offer hospi and a schoolteachers’ statements low IV instability the victim’s indicating tal record Appellant urges this Court abandon all patterns, behavioral and sometimes odd involving the rule homicide cases an issue years, back several of which offers dated of self-defense which limits a homicide vic- making jury of information deprived tim’s character evidence to aggression initial the defense of victim’s a reputation shows for known turbulence the evidence light more believable in unduly and violence as restrictive. being seen as to his already adduced asserts, that be further specifically, Appellant More he asserts that church. was not the state the victim’s mental state “opened up” the matter of cause the unable to clearly pictured, victim’s “character” when the victim’s den- defendant coherent, present complete, mgly, intelligently and reasona- to be waive ble defense. silent consult an attorney or with before facts and se- making the confession. The cites Appellant propo- authorities the quence by police of defendant’s interview involving sition that in homicide self- cases 3,1978, the officials on Jackson defense, the be expanded rule should County Jail have been noted above and allow evidence the of decedent’s mental ill- repeated. need not be ness on the of aggressor. issue who was the States, Evans United In 277 F.2d 354[1- of admissibility the a state Once (D.C.Cir.1960), a conviction was reversed 3] challenged, ment or has been confession and remanded for exclusion of of evidence burden its proving of voluntariness falls deceased’s mental by known insanity state, upon must show voluntari which deceased’s wife. This one is of a line of preponderance ness of evidence. specific cases admitting acts violence as Olds, (Mo. 569 S.W.2d 751[4] evidence; general well reputation as how- 1978). banc The test for voluntariness is ever, specific grounds of the reversal totality whether the circumstances are testimony would show de- deprived of a choice ad defendant free was aggressive ceased when In drunk. mit, deny, answer, or to refuse to Shahane, State v. 56 N.D. 219 N.W. physical psychological whether coercion it (1928), was held that evidence 134[5] will degree of such that defendant’s that deceased was dangerous insane and was overborne at the time he confessed. when insane was similar of ag- to evidence Higgins, State v. 592 S.W.2d 158[8] gressiveness intoxicated, when and should (Mo. 1979). banc similarly be admitted. Both of these cases involve the element of violence of the de- totality In the of circumstances ceased, which does not directly appear in case, in this it is defendant established that this record. Appellant’s contention fails be- was counselled not talk about the bank cause none of the tendered proof offers of respected robbery charge, and this was fit the requirement that the evidence be of It equally officers. is established tendency deceased’s to be violent and tur- subsequently Buckles en voluntarily present rule, bulent. The based on relevan- Stewart, gaged in a discussion Donald cy, is well founded generally accepted, distinct He robbery charge. from asked and should not be abandoned. Stewart, to see photograph became emotional, “deal,” asked to make a

V murder, after confessed Stewart’s which This the certified question. Appellant rights against he executed a waiver of his contends the admission presence of his confession interrogation without counsel.1 as, was erroneous under totality It officers to improper was not for the circumstances, he did voluntarily, know- interrogation continue the Compare 484-85, Id. at 101 S.Ct. at 1884-85. As set body forth in the of this Buckles’s con- Arizona, Edwards v. 451 U.S. 101 S.Ct. interrogation upon duct the occasion of the (1981). L.Ed.2d This Court finds brings squarely exception within noted inapposite Buckles’s case on the sur- facts quotation from above Edwards. rounding the circumstances incident to the con- Oldham, State v. S.W.2d fession Edwards and in that area control- ap- quoted In Oldham the Court ling significant finding majority here. A proval exception above rule and in Edwards in Edwards states: accused, as the law in Missouri. Oldham refused We further hold that an such as statement, Edwards, requested attorney having expressed make a an his desire to deal only counsel, any way police through with the did not in initiate further communica- is not subject interrogation challenged to further tion statement was au- from taken, improper thorities until counsel has made availa- in which circumstances it him, ble unless the accused himself initi- to admit the statement. communications, exchanges, ates further police. conversations with the VII clarifying

with after respect homicide interested in the bank rob were not tri Appellant’s contention that the Johnson, bery. v. See United States erroneously failed to sustain the al court 581, (8th 1975). This record F.2d Cir. acquittal for directed verdict of motion ruling court’s provides prove premedi basis for trial murder for failure capital merit. the prosecu is without Under in satisfaction of free of conflict with tation clearly theory, supported the evidence Oldham, Conflicts, tion’s any, if supra. v. State kill, planned that Buckles the inference trial court to in the evidence were for the rob, use the car of Stewart resolve, and this to the trial Court defers robbery. v. See State “planned” superior position in which to deter court’s Smart, 90, (Mo.1972) for 485 S.W.2d 93[2] Crim.Law, credibility. Mo.Dig., Key mine any premeditation proposition 1153(1). 532(2) Nos. brief, duration, is As however sufficient. I, error, supra, any, if would out pointed VI regarding this submission prejudicial not convicted of defendant was because Appellant confes argues that his capital murder. Discipli sion was obtained in violation of nary 7-104(a)(1), of Pro Rule Rule Code resulting Responsibility;

fessional VIII obtained, illegally evidence and there the state Appellant contends fore not available for use properly proof regarding failed to meet its burden prosecution. responsibility of Professional murder. degree self-defense and second is attorneys a factor to be considered showing self-defense prima facie Once confessions, evaluating admissibility to rebut made, is on the state is the burden shown, but once waiver is the Code of Pro justifiable. showing killing fessional has no role ad Responsibility Ford, (Mo. 491 S.W.2d State 542[3] McConnell, missibility. 529 S.W.2d Under 1973). State met this burden. The state verdict, de Appellant’s ar to the (Mo.App.1975). the evidence favorable 189[4] than the stronger duty bigger is it was the trial court’s fendant gument victim, take the knife warned him he would prohibit under the Code to the state from him, was not wounded away and use it using any evidence obtained from the state victim, taking the knife and after ment rule. obtained violation of this any fear. longer experienced no prohibi- Appellant applied for a writ of Nevertheless, utilize try did not against tion the use of this statement and avoidance, escape available avenue grounds. the evidence obtained on the same defensively plea the victim’s ignored The quashed; appeal motion was taken to repeated stop, raised hands to stabbed Supreme Court transfer car, placed the out both in and ly entered Appeals Court of where order was river, and fled. body in the victim’s sustaining trial quashing court’s met its burden the state (State Similarly, ex motion without an rel. did not providing evidence Wilson, Edward Buckles v. WD Gurney fear, anger, agitation suddenly kill out of 873). Assuming presence discipli of some acts. unexpected victim’s by the provoked violation, nary precedent rule no is cited or Holt, 592 S.W.2d 764[2] found “fruit of the incorporating type evi previously discussed excluding poisonous approach tree” premedi lack of self-defense dence on obtained evidence. The McConnell ration- these submis support tation is sufficient excluding disciplinary ale rule considera- mo overruling orders defendant’s sions and tions admissibility questions from where acquittal. tions for applica- waiver and appear voluntariness judgment below is affirmed. ble.

925 DONNELLY, RENDLEN, J., the Federal Bureau of and Investigation, C. and HIGGINS, WELLIVER, JJ., county MORGANand two sheriffs went to the Jackson concur. appellant being where held County jail was interrogate him. contact was initia- This J., SEILER, dissents in separate dissent- officers, appellant, ted the and by opinion ing filed. indication would see “Buckles’ he [that] BARDGETT, J., concurs in dissents and what the be taken officers wanted” cannot SEILER, separate opinion J. dissenting by as an initiation exchanges SEILER, Judge, dissenting. with the officers. I respectfully con- Appellant’s dissent. Agent Holtslag, who was the chief inves- fession suppressed. should have been It tigating regard officer in to the bank rob- was obtained violation Miranda v. bery, present was additional possible Arizona, 1602, 384 U.S. 86 16 S.Ct. question- federal violations and to assist in Arizona, (1966), L.Ed.2d 694 Edwards v. it, because, appellant, put as he had U.S. S.Ct. 68 L.Ed.2d 378 knowledge “the most well-rounded of the (1981), Oldham, and State v. 618 S.W.2d prior robbery. events” to the bank Ser- geant investigate Anderson was there to Appellant had been in Las Ve- arrested the robbery bank and what he believed gas, Nevada, 20,1978, agents on January Stewart, be a possible murder. One Donald Investigation Federal Bureau of Missouri, Columbia, a resident of had not robbery of the Farmers State Bank in Ro- 13,1978, been January seen since Stew- sendale, Missouri, which occurred on Janu- Nova, car, a art’s Chevrolet had used ary 1978. A in- federal bank and then robbery getaway in the bank dictment City was returned in Kansas on abandoned. Each of the four officers was January 1978. Also pending against officer, experience veteran their combined appellant awas three felony count com- years law totaling to 50 enforcement plaint Missouri, in Holt County, filed Janu- of Investigation work. The Federal Bureau ary 21,1978, appellant wherein charged robbery (which had solved the bank $4,200 with stealing from the Farmers agent profes- planned said was not well Bank, as well as with criminal armed executed) sionally forty-eight in less than action and tampering with auto- Stewart’s and, said, days within four had hours as mobile. It was the appellant.1 located and arrested Upon his arrest in Las Vegas, appellant theory appellant of the state that killed given warnings, Miranda declined use in Stewart obtain automobile give statement, requested an attor- officers, while robbery, bank so the ney. He was returned City to Kansas professing no further interest in where, on February 1978, he was ar- connecting robbery, were in fact desirous of raigned by the federal on the authorities (which trial two state did at bank robbery charge, a fed- intent, premeditation. prove motive public eral defender. Defendant talked II The offi- part principal opinion). See lawyer with his day. that same At this combination, cers, were either or in singly point, Arizona, under supra, Edwards foregoing aware of the embarked as Oldham, State v. supra, defendant was not upon appellant. interrogation subject to interrogation po- further Anderson, Sergeant lice who conducted unless defendant con- himself initiated jail police. going tact with the knew before following day, interrogation, 3,1978, counsel, Sergeant represented by Anderson of Buckles Patrol, Highway appellant’s Missouri Agent Holtslag but no to contact made effort April appellant pleaded guilty years. 1. On was sentenced to fifteen robbery charge federal court to the bank Supreme ed out that the Arizona Court It unclear lawyer before interview. concentrating en- from the record the other law voluntariness whether confession, this prior forcement officers also knew defendant’s determined interview, circumstances, but misunder- totality first few minutes of the stood, undisputed it is before mak- herein in principal as does the ing any told all four totality statements whatsoever its reliance on the the circum- rep- investigators stances, finding at the outset that he was requirement “the for a val- him by counsel, resented counsel who had advised right in- id waiver to once any offi- “not to talk to law enforcement instead, upon a depends, voked.” That asked, cers.” One of the officers then that his showing defendant “understood robbery?” to which Buck- the bank right and intelli knowingly “[A]bout to counsel again giv- les replied, “Yes.”2 Buckles was 484, 101 at relinquished it.” Id. S.Ct. gently a en to warnings, sign his Miranda asked objective an at 1884. Edwards established so. rights waiver of his and refused to do right to determining whether the means of questioning, After further he made incrimi- invoked, counsel, honored once has been nating concerning statements the murder Court stat- officers. The interrogating At Stewart then the waiver. signed that, requested once has coun- suspect ed a trial, objection sup- his to over and motion sel, interro- subject to further he cannot be press, his statements were introduced counsel, unless he initiates gation without against him. 484-85, at the contact. at 101 S.Ct. Id. easy-to-fol- of this 1884-85. Establishment appeal, appellant claims the trial On to gives guidelines low rule lower courts sup- overruling court erred in his motion to a for case- follow and eliminates the need press his 3 statement and admit- analysis which results in “inconsist by-case evidence, ting same in because taken virtually indistinguish ent based on results sixth, fifth, violation of his and fourteenth Note, v. Arizona: able facts.” Edwards a right amendments to counsel. “[OJnce New Life into Breathes Burger Court admissibility defendant challenged has 1734, 1744(1980-81). Miranda, 69 Cal.L.Rev. of a statement or confession made while Oldham, S.W.2d 618 This court to police on the state custody, burden is (Mo. 1981) Edwards for applied banc 647 comported demonstrate its elicitation time, stating: the first controlling requirements constitutional the issue Resolution Court voluntarily the statement was made.” simplified by the presented has Higgins, State v. 592 158 S.W.2d very recent guidance found now Arizona, 477 of Edwards U.S. case Miranda held an held for “that individual (1981), 68 L.Ed.2d S.Ct. 378] [101 interrogation must informed that clearly be the trial was not available to lawyer he has the a right to consult with at time of submission judge, parties during and to have the with him lawyer at of trans- District time nor the Western for interrogation system protect under the ” fer. ... . privilege the [fifth amendment] formulat- The Oldham court Id. 648-49. Arizona, Miranda v. 384 U.S. test, of ask- which consists following ed the 1602, 1626, 16 (1966). The S.Ct. L.Ed.2d 694 whether questions, determine ing two depends to counsel right fifth amendment been violat- to counsel has right defendant’s charge on a in-custody interrogation, accused, ex- having after “(1) ed: Did the Supreme charges having been filed. counsel, desire for assistance Arizona, pressed Court in Edwards v. U.S. (2) If the (1981), initiate further communication? point- 68 L.Ed.2d 378 S.Ct. just robbery.” erroneously concerning the attorneys “if that was 2. One of the for the state question However, attempted argue hearing it mo- is to noted at the on the limited, ap- appellant question put actually put so was not for tion new trial that princi- pellant lawyers fact not discussed considered he had told after said pal opinion. to talk officers was law enforcement principal opinion recognizes ‘yes’ Although answer one is did the accused do so represented by that once voluntarily, knowingly intelligently?” further subject ques- counsel is not Id. at 649. holds that if the Oldham further unless he initiates further communi- tioning (1) answer to is no the inquiry ends and interrogator, Edwards cation with his confession is inadmissible. Arizona, supra, application it avoids Here, expressed the accused had a desire position appellant by taking rule counsel, for thereby express- assistance of any- never invoked his counsel ing his to act in his best inability own than thing other federal bank interests, represented by and was in fact charge. ignores appellant’s original This there counsel. The fact arrest, request upon counsel his subse- sovereigns prosecuting were two quent interview with counsel and the blan- charges ap- under different that his ket advice not to talk to law enforcement pointed charge counsel was for the federal officers, an- requires appellant’s that does change not this. To make that “yes” question swer to the officers’ “About encourage determinative factor be to would robbery?” amounting the bank as be treated circumvention aof defendant’s constitution to the precise more than a direct answer to al rights. Downing, United States v. taken, first, question it as put; that be F.2d (1st would Cir. It being by to the officers’ assured amounting permit officers to a defendant interrogate all appellant that it was lawyer his said about suspected activity criminal ex right any suspected to them about talk to cept specific charge for which counsel (even robbery crimes other than the bank had appointed. appoint Whether his suspicious, were though highly the officers ed counsel would have appellant defended convinced, if not that the car theft respect court with felony to the state directly were disappearance of its owner not, or charges the federally appointed and, second, to robbery) connected the bank only counsel was the appellant counsel had part, despite on willingness appellant’s at the time.3 This fact was known to the counsel, to now having requested earlier interrogating prior question officers questioning without advice of submit to respons that elicited the incriminating counsel all else other than the bank as to es, as was the fact that there were both robbery. state and charges pending against federal felony The are a three count facts that appellant. There is no why appel reason Holt complaint had been filed Coun- counsel, lant’s appointed stage, this early at ty prosecuting attorney January on would limit his advice to to law talk appellant pending against and was enforcement officers to bank the federal him the when for appointed counsel robbery charge charges when state various 2, 1978, February on magistrate federal on robbery interrelated with the bank lawyer. with his appellant talked day out growing why of it were pending, law These facts were known to the enforce- experienced expect officers other would nothing in the rec- ment There is officers. wise. There question is no that the offi appellant’s idea support ord to that cers, accused, not the initiated the further three count counsel was not aware of the communication which place took at all of which felony complaint, counts state County jail. Jackson Because the officers that robbery, the same bank grew out of appellant initiated the interview had after advising appel- counsel his advice to limited invoked his fifth right robbery. amendment to coun not to talk about the bank lant sel, ap- it that unnecessary to answer the second the record shows contrary, On the question set out outset of in Oldham. told the officers pellant fact, charge April appel- In counsel was not dismissal state on charge asking appellant lant on the state until December if that were not done given speedy 1978. His federal counsel trial. acted behalf appellant charges requesting on the state robbery, if bank had stolen to commit the interrogation that his might that that it bear no other reason him not to talk law for lawyer had advised case.4 on the issues in the enforcement officers. if proceeds as principal opinion Why was the “About the bank question, talking about not put appellant question robbery?”, put appellant? It is fair the bank “Only about to the officers were officers, say the who were federal and state the bank rob- robbery?” or “Just about team, working appellant as knew that question was not bery?”. But his fifth right invoked amendment coun- did not the officers Significantly, asked. (he lawyer) sel told them had a said it counsel had appellant ask whether his sixth amendment to counsel had right talk with appellant would be all (Agent Holtslag, particular, attached tes- where- as to the law enforcement officers this), tified about had been of Donald abouts Stewart. talk, advised in broad terms and that attempts principal opinion they Although needed a waiver if were to inter- further, and Oldham from Edwards rogate regardless distinguish case, in all three cases the facts questions whether the were as to federal or the instant The defendants question quite are similar. suspected put crimes. clever, to custodial subjected were all produced only was deft and but it three cases during waiver, interrogation. All three defendants meeting colorable far short indicated that interrogation a know- earlier had government’s showing burden of an amend- relinquish- to their fifth ing, intelligent voluntary they wanted exercise law Subsequently, appellant right of a ment to counsel. ment abandonment contact authorities initiated right privilege. known Edwards Ari- enforcement zona, during whom 451 101 at 1883. with the of U.S. at S.Ct. defendants —none requested question response subsequent interrogation not did call resulted in incrim- had counsel —and contact appellant from as whether counsel which, in Edwards and inating said it all to talk law en- statements right us, those before but the similar facts to anything forcement officers about Oldham on robbery. bank It does that be- were held inadmissible. not follow cause not counsel said to talk about on the principal opinion also relies it was bank that counsel said waiver. Such signed appellant fact right every- all anything talk about case, Oldham misplaced. In the reliance is thing question put else. That was never a waiver.5 This signed the defendant also ques- appellant. Appellant answered the state, of a violation did not avail the once put. say tion He did not he was free or express occurred. An the Edwards rule than the willing to talk about matters other inevitably not establish written waiver does robbery. question remains whether de waiver. The effectively waived Mi job

If had done his fendant in fact appointed counsel Butler, (and 441 rights. we cannot counsel was randa North Carolina assume sub- 369, 373, 1755, 1757, 99 60 L.Ed.2d give appellant standard or did not sound U.S. S.Ct. that “a advice), (1979). Edwards also holds appellant answered 286 would have be estab him, of that cannot question, put such a had it valid waiver only responded that he negative. lawyer by showing all know that his lished We interroga custodial police-initiated would not have told him to talk law further advised of his if he has been enforcement officers as to the whereabouts tion even 484, 101 at 1884. he S.Ct. missing rights.” of man whose automobile 451 U.S. opinion, primary performed by appointed but it This fact is not set out in 4. office 5. “[T]he testimony parallels privately appears counsel in the record from the the office of retained interrogated appellant. principal responsibility officer counsel.... His is to who serve the undivided of his client.” interests Ackerman, 193, 204, Ferri v. 100 U.S. S.Ct. (1979). L.Ed.2d It is true that appellant admitting after the officers The trial court erred into evidence, their interrogation objection, incriminating initiated about over appel- disappearance victim, asked statements obtained in violation victim, photograph see a lant’s fifth and fourteenth amendment but this was reversed rights judgment from should be response appellant to interroga- trial. tion and the cause remanded for a new initiated the officers and constitutes neither an initiation of further communica-

tion by sense Ed- predicate

wards nor a subse- finding

quent waiver. Nor can inquiry Buckles’ as whether could “make a deal” consti- waiver,

tute a as it clearly response police initiated statement trip Minnesota victim Buckles Missouri, Respondent, STATE had been traced. necessary One facts that must be found before the waiver question is even BROWN, addressed is that “the ac- Appellant. Lee Precious cused, the police, reopened the dialogue No. 63143. n.9, with the authorities.” Id. at 486 Missouri, Court of Supreme S.Ct. at 1885 n.9. necessary That fact is En Banc. missing Edwards, here. appel- Under once lant counsel, invoked his right to as it is Aug. 23, 1982. here, conceded did there waiver was no Rehearing Sept. Denied because the subsequent interrogation was police initiated.

Not only is the first test of Oldham here,

met not, but the second test is either.

Despite the principal opinion’sinvocation of

“totality circumstances”, is there no evi-

dence appellant initiated further com-

munication with the officers or that if he

did so it was done voluntarily, knowingly Instead,

and intelligently. appellant did no

more than react to the accusations of the

officers—that they were there to talk about

Donald Stewart and that knew about

the Minnesota trip taken Ap- two.

pellant’s pressure reactions to this cannot considered waiver of his Miranda

rights, no matter if the trial court did find

otherwise. principal error is a saying credibility. it matter of On facts,

the stated there was no valid waiver counsel, his right earlier invoked.

There are no present showing facts intelligently knowingly relin-

quished respect to counsel with

the homicide investigation. under He was

never asked about specifically given

a chance to refuse counsel before commit-

ting himself.

Case Details

Case Name: State v. Buckles

Court Name: Supreme Court of Missouri

Date Published: Aug 23, 1982

Citation: 636 S.W.2d 914

Docket Number: 63808

Court Abbreviation: Mo.