State v. McMullan
713 S.W.2d 881
Mo. Ct. App.
1986
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*1 doned it and a silencer. The confession admissible. Defendant’s point

fourth is denied. point challenges

Defendant’s fifth sufficiency evidence. view of holding on Point IV that the confession admissible, point must fail. There

was sufficient evidence to convict defend charged. the crimes as Defendant’s

fifth is denied. points

Defendant raises four other appeal. VI, VII, VIII,

on Points IXand supported by any authority. citation to

By failing argu to cite authorities brief, portion of his points

deemed have abandoned these on

appeal. Glenn, See State v. 429 S.W.2d (Mo. 1968). banc We have re error, gratia,

viewed for ex and found jurisprudential

none. No purpose would be opinion

served a written points. on those

They are pursuant therefore denied to Rule

30.25(b). judgment of the trial court is af-

firmed. CRIST, JJ„

REINHARD and Missouri, Plaintiff-Appellant,

STATE of McMULLAN, Roger

Alfred

Defendant-Respondent.

No. 51546. Appeals,

Missouri Court of District,

Eastern

Division One.

July Orzel, Prosecuting Atty.,

David R. Asst. Farmington, plaintiff-appellant. for Defender, Hager, Donald J. Public Farm- ington, defendant-respondent. *2 GAERTNER, CARL R. Presiding Judge. talk either to Nelson or Pickett about the asked, offense. predictably When Pickett Charged degree murder, with first de- me?”, in replied “What’s it for Nelson he fendant moved before trial to evi- would talk to the about Pick- he dence claimed the had obtained in ett’s case. Pickett said he would see what violation of his Fifth and Sixth Amendment he could do. rights court, to counsel. The trial after a hearing, granted day The next Pickett and McMullan in the motion and ordered words, “got talking”: Pickett’s to suppressed. evidence brings The state an interlocutory appeal from suppres- Well, just got talking to and I 547.200, sion order. RSMo.Cum.Supp. him asked about the case explained § 1984. We affirm. get to him that I try could ... to some- help one to him. And he listened to me July, jail awaiting while in trial and then ... told him I knew a charge receiving on a property, stolen might in try St. Louis that I be able to to defendant Alfred McMullan became the fo- get him ... And after we talked awhile police investigation cus of a into the mur- pretty just telling about it he well started property. der of the owner of the stolen everything happened. me Sheriff Vernon Nelson conducted the inves- put Pickett tigation, interrogating story asked defendant to defendant on five writing in accurately so that Pickett different occasions. On each occasion Nel- relay it to lawyer. son advised Defendant com- defendant of his under plied. Pickett turned the written state- ment over to Nelson who turned it over to and on each prosecuting prosecuting The attorney. occasion defendant made a statement. exchange in record does assured not disclose the nature or con- cooperation felony Pickett’s the four tent of defendant’s statements. It does establish, however, (on pending against counts him would be that when the fifth dropped. occasion) Nelson, The statement led to dis- defendant told implicating cover other evidence defendant. but I want charged subsequently Defendant was present,” interrogation ceased and counsel murder. appointed represent to defendant on the property charge was called in. trial Defendant moved before Counsel conferred with defendant then told press the evidence the had obtained

Nelson there would be no statement and no Pickett, Pickett, arguing that as deals. state, agent elicited defend- had ant’s in of his Fifth and statement violation Thereafter, Nelson made no direct at- Sixth Amendment to counsel. The tempt incriminating to elicit information persuaded, trial court and ordered the was recognized from defendant. Nelson an al- statements and its fruits ternative, evening when one de- fendant, “upset,” “crying,” “afraid of suppression appeals The state from the (a cellmate) being up by beaten someone para- raising points, order three which we calling squealer,” that was asked to a 1) phrase: suppress- erred in the trial court protected. defend- Nelson transferred ing Amend- defendant’s statement on Sixth occupied by Danny ant to a hold-over cell grounds ment because no information Pickett, persistent a offender who was fac- charging with the murder had defendant possible years prison elicited, on four statement was been filed when the felony counts. Nelson called Pickett to his Amend- and therefore to, attached; in Nelson’s own yet office and asked Pickett McMullan, (who) 2) “comfort Mr. suppression grounds on Fifth Amendment upset.” was elicit- rather Nelson also told Pickett was error because the statement inmate, suspected McMullan of and asked ed and not an murder fellow state; 3) its if McMullan to even if the statement and Pickett to see he could against normally fruits are inadmissible than those attendant to arrest custody) that the should know case-in-chief it would be error to bar their use defendant as reasonably likely to elicit an incrimina- ting response suspect.” from the Rhode Island v. the subsequent charge Because murder charge was but an additional related to the original receiving charge, *3 property supports The record in this case the the state’s assertion that defendant’s state knew, conclusion that Sheriff Nelson ment was elicited before his Sixth Amend known, placing should have is, to counsel had attached cell with defendant in hold-over with — light Moulton, U.S. -, of Maine v. structions to defendant to talk about 106 S.Ct. of was, given the murder defendant’s anxious doubtful merit. We need reach not the cooperate, state and Pickett’s incentive to issue, however, because hold that use of we “reasonably likely an act to elicit an incrim defendant’s statement and its fruits as sub inating response” from defendant. Pick by stantive evidence him is barred ett’s with conversation defendant was Miranda, exclusionary rule of supra. equivalent” therefore the “functional of di pass impeachment We do not on the issue police interrogation.2 rect Rhode Island v. point, the state raises in its third as we find interrogated supra. Pickett defend properly it is not before us.1 concerning the murder after defendant When a his Fifth invokes plainly expressed his desire to deal to have counsel police only through counsel, and the during interrogation, a custodial as defend dispute interrogation state does not ant did in this case with the by Accordingly, was initiated Pickett. but want interrogation find of defendant in this case present,” interrogation must cease until Edwards, “bright-line” violated the rule suspect’s present. Mi supra, that once a has invoked Arizona, supra, randa v. 384 U.S. at may to counsel he Fifth Amendment 86 S.Ct. at 16 L.Ed.2d at 723. More subjected not to further be over, suspect expresses once a his desire to 484-485, unless he initiates it. 451 U.S. at counsel, police only through deal with the 101 S.Ct. at at De as defendant did here when he advised motion to fendant’s Sheriff Nelson counsel that there properly granted. deals,

would be no statement and no The order is affirmed. may not be interroga to further tion unless he himself initiates further com J., SMITH, separate opinion. concurs in munication, exchanges, or conversations police. with the Edwards v. SNYDER, J., separate opinion concurs in 101 S.Ct. SMITH, J. (1981). “Interrogation” under Miranda SMITH, Judge, concurring. only express Edwards embraces not pronouncements questioning by police, Given the of the United “any but also words part (other Supreme opin- or actions on the States Court as cited principle 1. As an abstract the assertion that evi- of untrustworthiness from which we dence, may trustworthy, ruling. otherwise used to infer such a The issue the state raises in impeach though a criminal defendant the exclu- properly its third is therefore not sionary rule of Miranda has its use in the barred us. certainly correct. case-in-chief is Hass, Oregon See expressly 2. The trial court found Pickett acted 43 L.Ed.2d 570 case, The trial court in this questioned as an of the state when he expressly has ruled that the not defendant about the murder. The record may state use and its defendant’s statement ports finding. fruits as Nor has it made a find- ion of the court the herein supra. longer decision is man- No reliability is the or vol- dated and correct. Pickett was more than untariness of the confession or statement cell, keystone “ear” in admissibility, he was also “a but rather encourage voice in cell to whether the conversation have “sporting” for the ‘ear’ to record.” conducted themselves in a Kuhlmann v. fash- — -, Apprehension ion. and conviction of felons prey upon abiding (Burger, law citizens is Concurring). not a game nor an athletic contest. deadly It is a We are bound our oaths of office to serious battle to a social cancer apply the Supreme decisions of the U.S. which threatens the very quality of life so preclude Court. That oath does not us society. treasured in a free The utilization expressing disagreement from ruses, trickery, deception, pos- while apply. we must law sibly “unsporting”, is not unwarranted in admissibility The test of a confession’s transgresses such a battle unless it a clear- traditionally has been its voluntariness. ly right. defined constitutional *4 Voluntariness in turn has been determined way Defendant here was in no coerced by freedom from coercion which could giving into the statement which has been involuntary cause an and therefore non- voluntarily ap- He did so credible confession. In Arizo- parent disregard ignorance or the an- na, 1602, 384 U.S. 86 16 S.Ct. L.Ed.2d adage among cient that there is no honor 694 the court established certain right thieves. Nor was he denied the guidelines suspect to insure simply disregarded ignored He counsel. or fully rights thereby presum- advised of his keep counsel’s advice to his mouth shut. ably removing coercion from interro- the advent of the cases cited I Until above gation. One of the that a right had not believed that the right has to be advised of is his to counsel. protect suspects ig- was intended to If he invokes through cupidi- nore their counsel’s advice must cease until counsel is obtained. This boastfulness, ty, stupidity, or remorse. fully is to allow him informed of to be his murder, investigating Sheriff Nelson was legal position making any the most serious denial of constitutional necessarily further statement. It does not rights imaginable. way He in no mistreat- follow that counsel must thereafter be defendant, ed the or coerced into con- whenever discuss the case fessing, or him to custodial inter- presumably the advice rogation designed or to break will over- counsel would be not to discuss case had consulted ride his mind. Defendant anyone. From this Miranda presumably re- with his and had “right has arisen a to counsel” under the protect himself advice sufficient to ceived explicitly Fifth referred to my opinion, of the purpose, which is the Arizona, 451 therein. Edwards v. U.S. right to counsel. He did not do so. It is 68 L.Ed.2d 378 S.Ct. thing Fifth and Sixth one to utilize the explicitedly of counsel and that That pros- prevent Amendment to Amendment have served stated to in- compelling ecution from a defendant confes- to move the focus of examination of himself; something entirely criminate it is sions from into the realm of voluntariness different to utilize those amendments to whether the confession was “elicited” such incrimi- permitting them from prosecution. Spano v. New nation. York, reluctantly (1959); States, 377 Massiah v. United 201, 84 S.Ct. Williams, (1964); Brewer v. (1977); S.Ct. 2183, 65 Henry, 447 U.S.

v. (1980); Kuhlmann