Dеfendant appeals from a judgment entered on a jury verdict finding him guilty of two counts of first-degree child molestation, in violation of Section 566.067 RSMo (2000). The trial court sentenced defendant to ten years imprisonment on each count, to be served concurrently. On appeal, defendant claims that his constitutional right to face-to-face confrontation was violated at trial when the trial court allowed the state to move a podium in the courtroom so that the two victims could not see defendant while they testified, and his constitutional right not to incriminate himself was violated when the trial court
The sufficiency of the evidence is not in dispute. Between September 21, 2004 and October 1, 2004, defendant touched the genitals of his four-year-old granddaughter, B.H., and between January 27, 2003 and January 27, 2004, defendant touched the genitals of his other four year-old granddaughter, A.C., for the purpose of arousing his own sexual desire.
I. Denial of Right of Confrontation
For his first point, defendant contends that the trial court erred in allowing the prosecutor to move a podium so that the two victims could not see defendant, and defendant could not see them, while they were testifying. He maintains that this action, absent a case-specific finding that the victims would be traumatized by being forced to testify in defendant’s presence, violated his right to face-to-face confrontation with his accusers.
A.Factual Background
Before the prosecutor called B.H. to testify, she moved the podium so that B.H. would not be able to see defendant. Defendant objected on the ground that he was unable to see the witness stand. The prosecutor argued that B.H. had not seen defendant in two years and would be traumatized if she had to confront him in a room fiill of strangers. Defense counsel responded that it was not “appropriate to blockade a witness from ... a defendant, unless the Court finds that there’s some type of psychological trauma, and I think that would require some type of separate hearing.” The court overruled the objections, and allowed “the podium to be placed in such a position that the defendant [could not], in fact, directly see the witness.” When A.C. took the witness stand, defendant renewed his objection to the placement of the podium to block A.C.’s view of defendant, which the trial court again denied. The state did not introduce any evidence to support its claim that the victims would be traumatized and the court did not make any findings on trauma.
B. Standard of Review
The question of whether a defendant’s rights under the Confrontation Clause were violated by a ruling of the trial court is a question of law that we review
de novo. State v. March,
C. Analysis
1. Confrontation Clause Violation
Article 1, Section 18(a) of the Missouri Constitution provides that “the accused shall have the right ... to meet the witnesses against him face to face.” The Confrontation Clause of the Sixth Amendment of the United States Constitution, which the Fourteenth Amendment makes binding on the states, provides in part: “In all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him.” This clause guarantees a defendant in federal and state courts “a face-to-face meeting with witnesses appearing before the trier of fact.”
Coy v. Iowa,
In
Coy,
a large screen was placed between the defendant and the witness stand
In
Maryland v. Craig,
Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversаry criminal proceeding, the presence of these other elements of confrontation — oath, cross-examination, and observation of the witness’ demeanor — adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. These safeguards of reliability and adversaries render the use of such a procedure a far cry from the undisputed prohibition of the Confrontation Clause: trial by ex parte affidavit or inquisition ....
Id.
The Court concluded that “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.”
Id.
at 853,
[I]f the State makes an adequate showing of necessity, the state interest in prоtecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.
Id.
at 855,
The Missouri legislature subsequently enacted section 491.680 RSMo (2000). This statute provides that in prosecutions under chapters 565, 567 and 568, a victim under the age of fourteen can testify by mеans of an
in-camera
videotaped deposition, and the defendant can be excluded if “the court finds, at a hearing, that significant emotional or psychological
Missouri courts have generally required that the emotional or psychological trauma be established by expert testimony.
State v. Sanders,
Defendant argues that although this case does not arise under section 491.680, the same case-specific finding of necessity should have been made before the podium was moved. No Missouri statute approves of or provides a procedure for moving a podium in this situation. It is clear that moving a podium to block a defendant’s and a child witness’s view of each other is virtually similar to the use of the screen for the same purpose in
Coy,
and
Craig
would require a finding of emotional and psychological trauma based on evidence.
See Coy,
2. Harmless Error
The state alternatively argues that if there was a violation of the confrontation clause, it was harmless beyond a reasonable doubt. Violations of the Confrontation Clause created by denying face-to-face confrontation are subject to harmless-error analysis.
Coy,
There is sufficient evidence apart from B.H.’s and A.C.’s trial testimony to support a finding that defendant molested B.H. and A.C. In his videotaped confession, defendant admitted to Corporal Branham that he had touched A.C.’s vagina twice, and B.H.’s once. In addition, after A.C.’s mother became aware of defendant’s confession to Corporal Branham, she confronted defendant. He was crying and immediately began apologizing. Defendant said that he just had an urge and could not stop it.
B.H.’s parents, a nurse practioner, and Corporal Branham each testified that B.H. told them that defendant had touched her vagina with his middle and index fingers. B.H.’s father testified that B.H. told him this occurred while defendant was reading her a story on the front porch of his house. A.C.’s mother and a Child Advocacy Center (CAC) interview specialist testified that A.C. told them that defendant touched her vagina while she was in his living room. The CAC interview specialist also testified that A.C. told her defendant touched her after pulling her pаnts part way down while she was lying across his lap.
Defendant responds that inconsistencies in B.H.’s and A.C.’s out-of-court statements refute a finding of harmlessness beyond a reasonable doubt. We disagree.
[I]n cases involving such young victims and sensitive and embarrassing subject matters, “it is common for the testimony of a victim of tender years to contain some variations, contradictions or lapses in memory.” Inconsistencies or contradictions in statements by a young child relating a sexual experience do not, by themselves, deprive the statement of all probative force.
State v. Mattic,
Here, the inconsistencies were minor. B.H. denied any touching to the CAC specialist. However, prior to that, B.H. consistently reported touching to both of her parents and Corporal Branham. A.C. did not admit to her molestation for two years and was unsure whether defendant touched her vagina or anus. However, all of the other details A.C. gave about the manner of touching and the locations where it occurred were consistent. The minor inconsistencies did not deprive the victims’ out-of-court statements of probative value.
The totality of the evidence other than B.H.’s and A.C.’s courtroom testimony establishes sufficient evidence of guilt. On this record, the confrontation clause violation was harmless beyond a reasonable doubt. Point one is denied.
II. Admission of Statements
In his second point, defendant asserts that the trial court erred in overruling his motion to suppress the statements he made to Corporal Branham and in overruling his objections to the admission of those statements into evidence. He argues that the statements should have been suppressed because they were taken when he was in custody and had not been given
Miranda
warnings. He further argues
A. Factual and Procedural Background
On October 20, 2004, a few weeks after he met with B.H. and her family about B.H.’s report that defendant had touched her vagina with his fingers, Corporal Branham telephoned defendant and asked him to come to the police station for a voluntary interview. Defendant reported that he had already learned of the allegation from his son and agreed to come in. He arrived at the police station with his wife shortly thereafter. Corporal Bran-ham met defendant and his wife in the lobby. He introduced himself as a police officer. He was not wearing a uniform, but he had an exposed firearm and handcuffs on his person. He advised defendant’s wife that she could not go to the interview room and that she should wait in the lobby.
Corporal Branham then escorted defendant to a second floor interview room. The interview room itself was approximately 8 by 10 feet, had no outside windows, but had a window in the door. Corporal Branham removed his firearm prior to the interview.
He began the interview by saying, “Wanna sit right there for me. Thanks for coming up so quick.” Defendant responded “It’s okay. I wasn’t doing anything.” Corporal Branham informed defendant that he was not under arrest; that the door was unlocked; and that he was “free to go” if he wanted to leave. Defendant replied that he understood.
After approximately forty minutes, defendant asked to use the restroom. Corporal Branham replied, “I can take you downstairs to use the restroom, but we have to comе right back up and talk.” Corporal Branham testified that he escorted defendant to the restroom because they were in a secure police building and “civilians [could not] be left unattended at any time.” The standard policy required subjects who were being interviewed to use a bathroom inside of a jail cell. Corporal Branham stood outside of the cell while defendant used the restroom. Corporal Branham escorted defendant back to the interview room. They did not converse on their way to or from the restroom.
After defendant returned to the interview room, Corporal Branham asked him if he needed anything and said, “Have a seat.” He left defendant in the interview room alone with the door closed. After two minutes Corporal Branham returned and said, “Sorry about that. How are you doing?” He continued the interview. Approximately fifteen minutes later, defendant admitted that he had rubbed the outside of B.H.’s vagina and the inside of AC.’s vagina with his fingers.
At the end of the interview, Corporal Branham told defendant he was going to give him a couple of minutes by himself, and then “we’ll get you out of here,” unless defendant was ready to go immediately. Defendant answered he was not ready, so Corporal Branham left the room. When he returned he asked defendant if he was ready to go home, and defendant indicated he was.
After the interview, defendant was escorted to the lobby where his wife was
Defendant filed a motion to suppress his statements, which the trial court denied after a hearing. The court found that Corporal Branham’s testimony was credible and concluded that defendant was not subjected to a custodial interrogation and defendant’s statements were voluntary. The trial court overruled defendant’s objection to the testimony at trial.
B. Standard of Review
We review a trial court’s ruling on a motion to suppress to determine if it is supported by substantial evidence.
State v. Johnson,
C. Preservation of Error
Rule 30.06(c) provides that in appeals from criminal matters, the statement of facts, points relied on, аrgument, and appendix shall be prepared as directed by Rule 84.04. The requirements of Rule 84.04 are both mandatory and essential in that they enable the appellate courts to function smoothly and effectively.
State v. Jones,
D.Analysis
1. Whether Defendant was “In Custody”
Defendant first claims his statements were inadmissible because he was “in custody” at the timе of his interview and was not advised of his Fifth Amendment rights. Statements given by a suspect stemming from custodial interrogation are inadmissible on the issue of the suspect’s guilt of the charged offense, unless he or she has been informed of his or her rights under the Fifth Amendment.
Miranda v. Arizona,
a. The Wemer/Grijfin Factors
Both defendant and the state have briefed the “in custody” question by examining and weighing the individual factors identified in
Werner,
In
Werner,
the Missouri Supreme Court adopted a procedure for determining custody from
United States v. Griffin,
(1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspеct initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning.
In
Werner,
the Missouri Supreme Court set out the
Griffin
analysis and the six indicia of custody fisted therein.
Although both
Griffin
and
Werner
admonished that the fist of six factors was only representative and not exhaustive, opinions thereafter have used the six factors to analyze custody. In
United States v. Mottl,
The Eighth Circuit followed
Griffin
until its decision in
United States v. LeBrun,
The “ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” California v. Beheler,463 U.S. 1121 , 1125,103 S.Ct. 3517 ,77 L.Ed.2d 1275 (1983) (per curiam) (internal marks omitted). “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson,516 U.S. at 112 ,116 S.Ct. 457 ,133 L.Ed.2d 383 (footnote оmitted). Thus, the critical inquiry is not whether the interview took place in a coercive or police dominated environment, but rather whether the defendant’s “freedom to depart was restricted in any way.” Mathiason,429 U.S. at 495 ,97 S.Ct. 711 ,50 L.Ed.2d 714 . In answering this question, we look at the totality of the circumstances while keeping in mind that the determination is based “on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California,511 U.S. 318 , 322-23, 114 S.Ct.. 1526,128 L.Ed.2d 293 (1994).
LeBrun
was followed by
United States v. Czichray,
Although the “non-exhaustive” Griffin factors and their attendant balancing test are often cited in our decisions concerning Miranda, we recently resolved the question of “custody” as an en banc court with nary a mention of Griffin. See United States v. LeBrun,363 F.3d 715 , 719-24 (8th Cir.2004) (en banc). There is no requirement, therefore, that the Griffin analysis be followed ritualistically in every Miranda case. When the factors are invoked, it is important to recall that they are not by any means exclusive, and that “custody” cannot be resolved merely by counting up the number of factors on each side of the balance and rendering a decision accordingly. Exploring the nuances of such vague factors as “voluntary acquiescence,” “strong arm tactics,” and “police-dominated atmosphere” in order to place them on one side or the other of a balancing scale may tend to lose sight of the forest for the trees. The ultimate inquiry must always be whether the defendant was restrained as though he were under formal arrest. And the court must consider whether the historical facts, as opposed to the one-step-removed Griffin factors, establish custody. The debatable marginal presence of certain judicially-created factors that ostensibly tend to “aggravate the existence of custody” cannot create the functional equivalent of formal arrest where the most important circumstances show its absence.
In
United States v. Brave Heart,
As our recent opinion in Czichray makes clear, the indicia of custody identified in Griffin are by no means exhaustive and should not be applied ritualistically,counting indicia which contribute to custody against those which detract. 378 F.3d at 827 . Such an approach ignores the strength of certain indicia, particularly “the most obvious and effective means of demonstrating that a suspect has not been taken into custody” — an express advisement that the suspect is not under arrest and that his participation in any questioning is voluntary. Id. at 826 (quoting Griffin,922 F.2d at 1349 ).
It is important to note that a decision on the matter of custody requires more than tallying a ledger. Where one criterion is particularly influential, the failure to find other indicia of custody is not necessarily fatаl. In the end, these criteria are only useful tools meant to focus attention. The ultimate decision requires a hard look at all of the circumstances.
During the three month interval after
LeBrun
was handed down and before
Czi-chray
was handed down, our supreme court decided
Glass.
In
Glass,
the court analyzed the question of whether a suspect was “in custody” for
Miranda
purposes without citing
Werner
or listing the
Griffin/Werner
factors.
3
Glass,
Thus, it is clear that it is not necessary or even always appropriate to determine custody by weighing the presence or absence of the six Griffin/Wemer factors in each case. Rather, we look at the totality of the circumstances.
b. Totality of the Circumstances
Custody is determined by an analysis of the totality of the circumstances. Wern
er,
We begin by identifying the circumstances. Defendant voluntarily drove with his wife to the police station, and his wife waited for him while he was interviewеd. Corporal Branham began the interview by thanking defendant for coming, telling defendant that the door was not locked, he was not under arrest, and he was free to go if he wanted to leave. Defendant was not handcuffed, or otherwise physically restrained, and was allowed to use the bathroom. Corporal Branham was not in uniform and took off his firearm. The interview lasted only an hour. Corporal Branham was polite and respectful. Defendant was not arrested at the termination of the interview, rather defendant was given the opportunity to decide when he was ready to leave, and chose to stay until he was ready to leave.
We next consider if a reasonable person in these circumstances would have felt at liberty to terminate or leave the interrogation. The “most obvious and effective mеans of demonstrating that a suspect has not been ‘taken into custody or otherwise deprived of ... freedom of action,’
Miranda,
The United States Supreme Court has specifically held that a suspect is not in custody in the situation in which the suspect voluntarily goes to a police station for questioning, is told that he or she is not under arrest, is not physically restrained, and is not arrested at the end of the interview.
See Beheler,
The fact that the interview took place in a police station does not demonstrate custody.
Miranda
warnings are not required simply because the questioning takes place in a police station.
Beheler,
Statements to Defendant
Defendant next claims that two of Corporal Branham’s statements during the interview turned the interview into a custodial one. Defendant does not provide any legal authority or legal analysis supporting his claim that these two comments made him believe he was subject to arrest-like restraints and therefore fails to preserve it for review. Rule 84.04(d)(1)(C);
Franke,
Defendant first argues that Corporal Branham’s initial advice that he was free to go was undercut because Corporal Branham immediately added, “but you need to talk with me.” The record of the interview discloses that actual conversation was:
Q Okay. The first thing I want to tell you (inaudible) this door’s not locked, you’re under not under arrest or anything, okay? You’re free to go if you want to leave.
A. Okay.
Q. We need to talk about this and get it straightened out.
A. Right.
Q. Okay? You understand all that?
A. Right.
In this context, there is no indication defendant did not continue to understand that he was free to leave after Corporal Branham said, “we need to talk about this.” Rather, it shows that defendant agreed that they needed to talk, and he understood “all that.”
Defendant next points to the fact that when Corporal Branham told defendant that he could take him downstairs to use the restroom, he added, “but we have to come right back up and talk.” This statement must be viewed in context. Just before defendant asked to use the bathroom, Corporal Branham was in the process of encouraging defendant to talk in order to not put his family through more of an ordeal, and said that this was their “one chance to talk.” Defendant agreed that he did not want to put his family through an ordeal. Defendant next said
Escort to Jail Cell Bathroom
The fact that Corporal Branham escorted defendant to a restroom and stood guard while he used a jail cell toilet does not demonstrate arrest-like restraints in this case. Corporal Branham, whom the court found credible, explained that he escorted defendant because they were inside a police station and civilians could not be left unattended. He also testified that the use of the jail cell toilet was standard policy.
Werner
recognized that “suspects are often escorted or chaperoned during questioning for reasons unrelated to custody.”
Misleading Statements About Evidence
Defendant’s claim that during the first part of the interrogation, Corporal Branham made misleading statements to induce him to confess does not affect the custody determination.
4
False statements made to defendants during interrogation about the existence of inculpatory evidence are not relevant to a determination of whether a suspect is “in custody.”
Mathiason,
Implicit Promises of Leniency
Defendant also claims in his brief that after defendant returned from the restroom, Corporal Branham made implicit promises of leniency, listing the following statements:
— a lot of people loved him and just wanted to get through this one way and that’s by getting through this and you saying you’re sorry and if there’s anything we can do for you, we’ll do it.
— there’s a lot of people who love you and care about you and want this to be over but we can’t do that until you talk to me.
— what do you think is going to happen? Right now it’s going to go to the prosecuting attorney and judge and all the people I’ve been talking about are going to have to go to court and talk about it and I’m trying to avoid that. I don’t want that to happen.
— I want you to be honest with me about what happened and if we can avoid all that and if we can we will, but right now you’re not giving me any options, I don’t have any choice. This is going to the prosecuting attorney regardless but what happens with it from that point on then depends on how you want to cooperate. I don’t want to stick all these kids up there.
— the only thing that’s gonna keep that from happening is honesty.
Defendant does not support these statements with any references to the record, and defendant provides no legal authority or analysis supрorting his conclusion that promises of leniency are an indicia of custody or that these statements caused him to be “in custody.” In this situation, there is nothing to review.
Franke,
We have, however,
ex gratia
reviewed the statements as they appear in the brief and do not find that they are not relevant to the custody analysis. These statements do not constitute promises of leniency. Rather, they are statements about the causes and consequences of the investigation and its effect on family members. “It is appropriate for an investigator to advise a suspect of the potential course and consequences of a criminal investigation. Suspects frequently confront difficult decisions about whether to defend against potential criminal charges or to pursue resolutions that may ameliorate certain unpleasant consequеnces.”
Czi-chray,
Personal Traits
Defendant also argues that we “must” consider his “personal background, experience, familiarity with police questioning, maturity, education, and intelligence,” citing
Werner,
Conclusion
The totality of the circumstances surrounding defendant’s interview compels the conclusion that a reasonаble person in defendant’s position would not have understood the situation to be one of custody. Here a reasonable person, who voluntarily came to the police station for an interview, who was told he was not under arrest and could leave if he wanted, whose wife was waiting for him in the lobby of the station, who was not physically restrained, and who was treated politely, was allowed a
2. Whether the Statements Were Involuntary
Defendant also contends in this point that his statements were inadmissible as involuntary because they were induced by promises of leniency. He argues, without any citation to the record, that Corporal Branham
was promising him was that if he was “honest” and admitted what he was accused of, everything would be over, the family would welcome him back and get him whatever help he wanted. At the very least Branham implied that Mr. Hill’s “cooperation” would be taken into account by the prosecuting attorney when the time came to decide how to handle the case.
Because defendant fails to provide references to the record, this error is not preserved. Rule 84.04(i), Rule 30.06(e);
Franke,
We will not review a claim of plain error under Rule 30.20 unless there are substantial grounds for believing that manifest injustice or miscarriage of justice has resulted.
State v. Chaney,
For all of the above reasons, point two is denied.
Conclusion
The judgment of the trial court is affirmed.
Notes
. The state has referred us to Guese v. State, - S.W.3d. - (Mo.App.2008), in which the Southern District determined that a similar procedure did not violate the confrontation clause, and thus did not require counsel to make an objection. This opinion was not final at the time this case was handed down.
. In the argument section of his brief, defendant adds a third claim that Corporal Bran-ham had probable cause to arrest him and that therefore the interrogation should be considered custodial. This issue has not been preserved for appeal because this argument was raised for the first time on appeal, and because it was not included in defendant’s point relied on.
Yates v. State,
. We also note that the court has cited
Wemer
for the "totality of the circumstances” test in two cases considering seizures under the Fourth Amendment, but has not specifically referred to the six factors.
State v. Sund,
. Defendant does not identify or describe these statements in his brief, or make any attempt to show how relevant principles of law apply to these statements. Rather he merely cites a page in the transcript. This argument is so unsubstantiated, it fails to preserve anything for review.
Franke,
.
Werner
actually says that courts “may,” not "must,” consider these personal traits of a defendant.
.
Werner
held these traits were relevant, citing
U.S. v. Zahrey,