State v. Rogers

¶1dissenting.

¶2I must dissent. Defendant Rogers’ first point on appeal charges that the trial court erred in admitting defendant’s inculpatory statements to police. He contends that after he had decided to remain silent the police failed to “scrupulously honor” his right to cut off questioning and thereby obtained the damaging statements.

¶3On December 1, 1979, Detective Clarence Luther arrested defendant, gave him his Miranda warnings and questioned him about the murder of Marvin “Lou” Short. Rogers denied committing it. On December 4, Luther again advised the defendant of his constitutional rights and interrogated him about the Short homicide. During that interrogation, defendant told Luther that he would tell the detective all about it in detail and that he did not intend to kill anyone. He then stopped, paused a long *480time and then said to Luther, “I don’t want to talk anymore,” and that he would “take his chances with a jury.” Detective Luther honored the defendant’s request and stopped the questioning at about 5:00 p.m.

¶4Two other detectives, Sgt. Herb Soule and Stanley Love, were then assigned to take the prisoner to the county jail. Both officers knew that defendant had invoked his Fifth Amendment privilege. While handcuffing him, Sgt. Soule told defendant that he had heard that Rogers “would rather take his chances with a jury than talk to us.” Detective Love, having heard that Rogers wanted to take his chances with a jury, asked him if that is what the defendant had said. Rogers replied, “Yes, at the present time.” Sgt. Soule then asked Rogers if he was sure that was what he wanted to do. Rogers “kind of hesitated” and made no reply. Noting defendant’s hesitation, Soule asked Rogers if he wanted to know “what he was up against,” and the defendant said that he did. At that point,1 Soule read to the defendant a portion of the Missouri capital murder statute, including the death penalty provisions. Defendant then told Soule that he wanted to talk to him. (This exchange lasted only three to five minutes.) The detectives then took the defendant into an office and advised him of his rights; defendant signed a written waiver and began an oral narrative. At about 8:15 p.m., Rogers signed a statement disclosing that he had shot Mr. Short in the course of a robbery.

¶5Defendant’s exercise of his right to remain silent is not at issue in this case. Defendant told Detective Luther that “he did not want to talk anymore.” Sgt. Soule testified that he told defendant that “he had heard that defendant would rather take his chances with a jury than discuss the matter with us.” Detective Love testified that he also had asked Rogers if that was what he had said. That testimony establishes not only that Rogers had invoked his Fifth Amendment privilege, but also that Sgt. Soule and Detective Love were aware of his exercise of that constitutional right.

¶6Without question, Clarence Luther “scrupulously honored” Rogers’ “right to cut off questioning.” Michigan v. Mosely, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). He had immediately stopped questioning Rogers when the defendant told the officer that he wanted to remain silent.

¶7The only issue is whether defendant’s “right to cut off questioning” was “scrupulously honored” by Sgt. Soule. Id.Whether the trial court erred in admitting defendant’s statement turns on the resolution of that issue because under Miranda “the admissibility of statements obtained after the person in custody has decided to remain silent depends on whether ‘ “his right to cut off questioning” ’ was ‘ “scrupulously honored” ’ ” Id.

¶8In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court held that when a person in custody indicates that “he wishes to remain silent, the interrogation must cease.” Id. at 473, 86 S.Ct. at 1627. In 1975, the Court in Michigan v. Mosely, supra, held that Mirandadoes not “create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once a person in custody has indicated a desire to remain silent.” Id.423 U.S. at 103-04, 96 S.Ct. at 326. The Court further explained that:

A reasonable and faithful interpretation of the Mirandaopinion must rest on the intention of the Court in that case to adopt ‘fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored_’ 384 U.S., *481at 479, 86 S.Ct., at 1630. The critical safeguard identified in the passage at issue is a person’s ‘right to cut off questioning.’ Id., at 474, 86 S.Ct., at 1627. Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Mirandaon whether his ‘right to cut off questioning’ was ‘scrupulously honored.’

¶9The Mosley court explained that police can fail scrupulously to honor the decision of a person to cut off questioning either by “refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” Id. at 105-06, 96 S.Ct. at 327. Finding that the police did neither of the above, the Court held that the defendant’s “right to cut off questioning” in that case was fully respected. Id.at .104, 96 S.Ct. at 326.

¶10In Michigan v. Mosley, defendant Mosley was in custody for robberies. When advised of his Mirandarights, Mosley said that he did not want to discuss the robberies. The officer “immediately ceased the interrogation and did not try either to resume the questioning or in any way to persuade Mosley to reconsider his position.” Id. at 104, 96 S.Ct. at 327. After more than two hours time had elapsed, another police officer questioned Mosley at another location about an unrelated hold up murder. Before that questioning, however, the police officer advised the defendant of his constitutional rights. Based on these facts, the Court held that this was not a case “where the police failed to honor the decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” Id. at 105-06, 96 S.Ct. at 327.

¶11Obvious factual similarities do indeed exist between this case and Mosley. In both cases, the defendants initially had been given Mirandawarnings, both defendants had invoked their right to remain silent, and in both eases two hours had passed before the defendants were again confronted by police officers. From this point, however, the facts of the two cases differ significantly.

¶12In this case, Sgt. Soule approached the defendant after the two hours had passed and began talking to him without giving him a fresh set of Mirandawarnings as was done in Mosley. Although Sgt. Soule did give defendant Rogers his Mirandawarnings after Rogers stated that he wanted to talk and immediately before the defendant confessed, Sgt. Soule did not read defendant his rights before he addressed statements and questions to defendant that “undercut” Rogers’ “previous decision not to answer” questions concerning the Short murder. Mosley, supra, at 105-06, 96 S.Ct. at 327-28.

¶13Another significant difference between this case and Mosley is that Sgt. Soule questioned defendant Rogers about the same crime, that is, the Short murder. In Mosley the Court repeatedly emphasized the fact that the second interrogation was “restricted ... to a crime that had not been a subject of the earlier interrogation.” Id. at 106, 96 S.Ct. at 327. And the Court found that the second officer “did not undercut Mosley’s previous decision not to answer” the first detective’s questions because the second officer’s interrogation “focused exclusively on ... a crime different in nature and in time and place of occurrence from the robberies for which Mosley had been arrested and interrogated by” the first officer. Id. at 105, 96 S.Ct. at 327.

¶14Sgt. Soule’s comments, questions and reading of the statute to the defendant before he re-advised the defendant of his rights was an attempt “to persuade ... [defendant] to reconsider his position” and did “undercut” defendant Rogers’ “previ*482ous decision not to answer” questions about the murder. Id.The attempt to persuade is the point of focus. An incriminating statement which is the product of police persuasion of a suspect in custody is, in the words of the Supreme Court, “the product of compulsion, subtle or otherwise.” Miranda v. Arizona, supra, 384 U.S. at 474, 86 S.Ct. at 1628.

¶15Sgt. Soule testified that while he was handcuffing Rogers he told Rogers that he had heard that the defendant “would rather take his chances with a jury than to talk to us.” Then he began to try to persuade the defendant. He asked the defendant whether he was sure that was what he wanted to do. Rogers hesitated but made no reply. During this exchange, Detective Love elicited from Rogers his explicit reiteration of his desire to take his chances with a jury and not to talk. Rather than abandoning such questions at that point, after the defendant exercised his Fifth Amendment privilege by remaining silent and by explicit response to Love, Sgt. Soule “persist[ed] in repeated efforts to wear down his resistance and make him change his mind,” Michigan v. Mosley, supra, 423 U.S. at 105-06, 96 S.Ct. at 327, by asking the defendant if he wanted to know what he “was up against.” The defendant said, “Yes,” but that response did not waive his earlier exercise of his privilege to remain silent and right to cut off questioning. Nonetheless, Sgt. Soule read to the defendant the capital murder statute, including the death penalty portion. His purpose could only have been to persuade the defendant to talk and to obtain an incriminating statement from him.

¶16After all of that, the defendant said that he wanted to talk. At that point Sgt. Soule read defendant his rights and obtained a confession. Soule succeeded “by persisting in repeated efforts to wear down [the defendant’s] resistance and make him change his mind.” Id.In doing so, he failed to “scrupulously honor” defendant Rogers’ decision to “cut off questioning.”

¶17Although Missouri courts have concluded that officers may ask an individual who has invoked his right to remain silent whether he has changed his mind, officers may not attempt to persuade the individual to do so. Nor may they continue to question him. State v. Kimball, 613 S.W.2d 932, 941-42 (Mo.App.1981); State v. Taylor, 559 S.W.2d 35, 37 (Mo.App.1977). In both Kimballand Taylor, the officers advised defendants of their rights and the defendants immediately indicated that they did not wish to talk. The officers asked no questions at that time. In each case, sometime later officers asked the defendant if he wished to talk or make a statement. In response to these single inquiries, the defendants in both cases replied that they did want to make a statement. The statements were held to be admissible in those cases; the officers had scrupulously honored the defendants’ right to cut off questioning. The defendants were asked only one thing: whether or not they wanted to talk. And after being asked this question one time, the defendants replied that they did want to talk. They were not “repeatedly questioned nor was there any persuasion or inducement to make a statement.” Taylor, supra, at 37.

¶18This ease is distinguishable. Defendant Rogers made no reply when Sgt. Soule asked him whether he was sure he wanted to take his chances with a jury and not talk to the officers. Rogers did not change his mind about talking after a single inquiry as did the defendants in Kimballand Taylor. Rather, defendant Rogers changed his mind and decided to give a statement only after repeated effort by Sgt. Soule. The officer did not scrupulously honor defendant’s right to cut off questioning. Michigan v. Mosley, supra; Miranda v. Arizona, supra.

¶19Besides Kimballand Taylor, the only other Missouri case the majority opinion relies on is State v. Olds, 603 S.W.2d 501 (Mo.1980) (en banc). The majority says that Rogers’ voluntary agreement to confess was the same as the accused’s conduct in State v. Olds, supra.In Oldsthe court held that the defendant’s recorded statements were admissible because the defend*483ant had voluntarily, knowingly and intelligently waived his Mirandarights, but the court did not address the issue whether the officer scrupulously honored the defendant’s right to cut off questioning. The court had no need to reach that issue because it found that the defendant’s merely indicating his “desire that the tape recorder be turned off is not equivalent to invoking his Fifth Amendment privilege against self incrimination.” Id. at 507. Thus, State v. Olds does not address the issue in this case.

¶20The trial court erred in not suppressing the evidence of defendant’s December 4 oral and written confessions to Sgt. Soule and Detective Love and the December 5 reiteration and expansion of those confessions made to Detective Luther growing out of defendant’s confessions to Soule and Love.

¶21On this ground alone, the defendant is entitled to a new trial.