WD IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT STATE OF MISSOURI, Appellant, DOUGLAS E. PENNINGTON, Respondent.

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1 WD IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT STATE OF MISSOURI, Appellant, v. DOUGLAS E. PENNINGTON, Respondent. Appeal from the Circuit Court of Platte County, Missouri 6th Judicial Circuit The Honorable Owens Lee Hull, Jr., Judge RESPONDENT S BRIEF SUSAN L. HOGAN, #33194 Appellate Defender Office of the State Public Defender Western Appellate/PCR Division 920 Main Street, Suite 500 Kansas City, Missouri Tel: (816) Fax: (816) Counsel for Appellant

2 INDEX Table of Authorities... 2 Statement of Facts... 3 Argument... 8 Conclusion Certificate of Compliance and Service Appendix... electronically filed 1

3 TABLE OF AUTHORITIES CASES Berghuis v. Thomkins, 130 S.Ct (2010) Bram v. United States, 168 U.S. 532 (1897)... 9 Edwards v. Arizona, 451 U.S. 477 (1980)... 9 Johnson v. Zerbst, 304 U.S. 458 (1938)... 8, 9, 12 Malloy v. Hogan, 378 U.S. 1 (1964)... 9 Miranda v. Arizona, 384 U.S. 436 (1966)... 4, 7, 9, 10, 11, 13, 14 State v. Bucklew, 973 S.W.2d 83 (Mo. banc 1998) , 12 State v. Day, 987 S.W.2d 824 (Mo. App. E.D. 1999) State v. Mitchell, 2 S.W.3d 123 (Mo. App., S.D. 1999)... 8 State v. Sparkling, 363 S.W.3d 46 (Mo. App. W.D. 2011)... 8, 12, 13 State v. Werner, 9 S.W.3d 590 (Mo. banc 2000)... 8 UNITED STATES CONSTITUTION U.S. Const., Amend. V and XIV... 9 MISSOURI CONSTITUTION Mo. Const., Art. I, Section

4 STATEMENT OF FACTS An alleged sex crime involving a child was reported to the Riverside Police Department (Tr. 4-5). The child s parents provided the name of Douglas Pennington (Tr. 5). Detective Billy Aaron interviewed Mr. Pennington at the Riverside Police Department headquarters (Tr. 5-7). The interview was recorded by audio and video recording equipment (Tr. 6-7); State s Exhibit 1. Detective Aaron asked Mr. Pennington if he had ever been to the Riverside Police Department before. State s Ex. 1, 20:56:18. Mr. Pennington told Detective Aaron that he was there recently to report his neighbor, who had assaulted Mr. Pennington. State s Ex. 1, 20:56:18. Detective Aaron asked Mr. Pennington about the report he had filed and about where the neighbor lived, and said that he would have to look into that. State s Ex. 1, 20:56:18 20:57:20. Detective Aaron said that he had heard that Mr. Pennington kept an eye on things and provided information to the police; Mr. Pennington confirmed that he would call the Police Department if he noticed anything strange. State s Ex. 1, 20:57:24-20:57:40. Detective Aaron told Mr. Pennington, Our business is protection. We want to protect peoples rights, public safety, et cetera. And certainly yours. So part of my obligation is to make sure you understand your protections. State s Ex. 1, 20:57:49-20:58:03. Detective Aaron then stated, So this is some paperwork we go through so we can visit, all right. State s Ex. 1, 20:58:04-20:58:08. Detective Aaron asked Mr. Pennington where he went to high school, and Mr. Pennington indicated that he 3

5 graduated from Raytown High School in State s Ex. 1, 20:58:11-20:58:19. Detective Aaron said, I bet you still know how to read. State s Ex. 1, 20:58:18. Detective Aaron asked Mr. Pennington to read the Miranda 1 Warning. State s Ex. 1, 20:58:19; State s Exhibit 2. When asked to read the Warning out loud, Mr. Pennington did so. State s Ex. 1, 20:58:23-20:59:03. The detective then asked Mr. Pennington, That make sense to you? and You understand it? State s Ex. 1, 20:59:00-20:59:03. Mr. Pennington answered yes to both questions. State s Ex. 1, 20:59:00-20:59:03. The detective then asked Mr. Pennington to sign the Warning and told him, Your signature says that you understand it, okay? State s Ex. 1, 20:59:05-20:59:08. Mr. Pennington signed the form and Detective Aaron told him the time and date to put on the form. State s Ex. 1, 20:59:11-20:59:40. After Mr. Pennington signed the form, Detective Aaron asked him more questions about his background. State s Ex. 1, 20:59:40. The conversation about Mr. Pennington s background continued for approximately seven minutes, then Detective Aaron asked Mr. Pennington if he knew Stephanie. State s Ex. 1, 20:59:42-21:06:59, 21:07:00. After four minutes of talking about Stephanie and the other members of her household, Detective Aaron turned the conversation toward the date of the alleged offense. State s Ex. 1, 21:09:19. Mr. Pennington told Detective Aaron that he was the babysitter for Serenity, age 3, and her baby brother, for several hours that day. State s Ex. 1, 1 Miranda v. Arizona, 384 U.S. 436 (1966). 4

6 21:09:21-21:09:48. About twenty-four minutes later, Mr. Pennington said, I knew I made a mistake by touching her once with my hand. State s Ex. 1, 21:33:29. Detective Aaron suggested that Mr. Pennington should write a letter of apology to Stephanie and Serenity. State s Ex. 1, 21:35:56-21:36:30. Mr. Pennington said he would apologize so he could go his own way and Stephanie and Serenity could go their own way. State s Ex. 1, 21:36:58. Detective Aaron said, I ll give you that chance. State s Ex. 1, 21:37:07. Detective Aaron handed Mr. Pennington a Voluntary Written Statement form and Mr. Pennington was left alone in the room for approximately twelve minutes while he wrote a letter to Stephanie. State s Ex. 1, 21:39:40 21:51:40; State s Exhibit 3. The letter reads as follows: Dear Steffine I am sorry for touching your Dauther in the private part of her body and I like to say that I am very sorry for doing that I like to ask for your giviness and I ask the Lord to forgiviness and I hope you can for give me an let me go on with my Life and you go on with yours Please forgive me State s Exhibit 3. After Detective Aaron returned to the room, Mr. Pennington indicated that he put his finger in the girl s vagina a little bit. State s Ex. 1, 21:54:56. He said that he pulled her hand toward his lap but she pulled her hand away. State s Ex. 1, 21:57:43; 21:59:39. Detective Aaron left the interview room about an hour and ten minutes after he and Mr. Pennington arrived in the room. State s Ex. 1, 22:05:50. 5

7 The state charged Mr. Pennington with one count of statutory sodomy in the first degree and attempted statutory sodomy in the first degree (L.F. 10). Defense counsel filed a motion to suppress Mr. Pennington s statement to Detective Aaron, on the ground that Mr. Pennington did not knowingly and voluntarily waive his right to remain silent or his right to counsel, or his right to have counsel appointed for him (L.F ). A hearing was held on the motion to suppress on August 2, 2012 (Tr. 1). The court heard the testimony of Detective Aaron and reviewed State s Exhibits 1, 2, and 3 (Tr. 3-17). At the hearing, Detective Aaron admitted that he told Mr. Pennington that his job was to protect people and their rights (Tr. 13). Detective Aaron admitted that the Warning form did not say anything about Mr. Pennington waiving his rights or giving up those rights (Tr. 14). Detective Aaron admitted that he did not ask Mr. Pennington whether he intended to give up his rights to remain silent or to have an attorney, nor did Mr. Pennington ever say that he was giving up those rights (Tr. 14). Detective Aaron also admitted that he did not immediately tell Mr. Pennington that he was under suspicion for a crime, and that he talked to Mr. Pennington for about fifteen minutes before talking about any suspected misconduct (Tr ). On August 7, 2012, the trial court entered its order suppressing the recording of the interview and the apology letter (L.F ). The court found that the evidence presented at the hearing on the motion to suppress did not establish that Mr. Pennington knowingly, voluntarily, and intelligently waived his right to remain silent, his right to counsel, or his right to have counsel appointed for him (L.F ). The court noted that 6

8 Mr. Pennington never said he was giving up his rights and that the detective never asked Mr. Pennington whether he was giving up those rights (L.F. 18). The court also noted that neither the detective nor Mr. Pennington used the term waiver with regard to Mr. Pennington s Miranda rights, and that the detective did not articulate any basis for concluding that Mr. Pennington had knowingly waived his rights (L.F. 18). The state appealed (L.F. 21). 7

9 ARGUMENT The trial court did not err in sustaining Mr. Pennington s Motion to Suppress Statement because the state did not prove by a preponderance of the evidence that Mr. Pennington knowingly and intelligently waived his privilege against selfincrimination. When a defendant files a motion to suppress, the state bears the burden of showing by a preponderance of the evidence that the motion should be denied. State v. Mitchell, 2 S.W.3d 123, 124 (Mo. App. S.D. 1999). Review of a trial court s order sustaining a motion to suppress is limited to determining whether or not substantial evidence supported the ruling. State v. Sparkling, 363 S.W.3d 46, 49 (Mo. App. W.D. 2011). A trial court s ruling on a motion to suppress will be reversed only if it is clearly erroneous and leaves the appellate court with a definite and firm impression that a mistake has been made. Id. In reviewing the trial court s ruling on the motion to suppress, this Court must consider the facts in the light most favorable to the ruling, disregarding contrary evidence and inferences. Id.; Mitchell, 2 S.W.3d at 124. The standard of review requires the reviewing court to defer to the trial court s factual findings and credibility determinations, but to examine questions of law de novo. State v. Werner, 9 S.W.3d 590, 595 (Mo. 2000). The question of waiver is one of fact, and the trial court's findings of fact concerning waiver will not be overturned unless clearly erroneous. Sparkling, 363 S.W.3d at 51. On review, courts indulge every reasonable presumption against waiver of fundamental constitutional rights." Id. at 49-50, citing, Johnson v. Zerbst, 304 U.S. 458, 464 (1938); see also, State v. Bucklew, 973 8

10 S.W.2d 83, 90 (Mo. banc 1998). Such waivers must not only be voluntary, but must constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Edwards v. Arizona, 451 U.S. 477, 483 (1980), quoting Johnson v. Zerbst, 304 U.S. at 464. No person shall be compelled in any criminal case to be a witness against himself. Bram v. United States, 168 U.S. 532, 542 (1897); U.S. Const., Amend. V. The freedom from self-incrimination under the Fifth Amendment applies to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 8 (1964); U.S. Const., Amends. V, XIV; see also, Mo. Const., Art. I, 19. Under Miranda, any confession made by an accused in connection with an in-custody interrogation will be presumed to be involuntary in violation of the Fifth Amendment, unless the accused is first informed that he has a right to remain silent, that anything said can and will be used against him, that he has the right to consult a lawyer, and that if he is indigent a lawyer will be appointed to represent him. Miranda v. Arizona, 384 U.S. 436, (1966); U.S. Const., Amend. V, XIV; Mo. Const., Art. I, 19. In this case, the trial court found that the state did not establish that Mr. Pennington validly, voluntarily, knowingly, and intelligently waived his Miranda rights (L.F. 18). The court noted that Mr. Pennington never said he was giving up his rights and that the detective never asked Mr. Pennington whether he was giving up those rights (L.F. 18). The court also noted that neither the detective nor Mr. Pennington used the 9

11 term waiver with regard to Mr. Pennington s Miranda rights, and that the detective did not articulate any basis for concluding that Mr. Pennington had knowingly waived his rights (L.F. 18). The trial court did not err in finding that Mr. Pennington did not validly, voluntarily, knowingly, and intelligently waive his rights to remain silent, to counsel, or to have an attorney appointed (L.F. 18). The recording of the interview shows that Detective Aaron did all he could to minimize the impact of the Miranda warnings. Detective Aaron engaged Mr. Pennington in small talk both before and after he had Mr. Pennington read the Miranda warning and sign it. State s Ex. 1, 20:56:18-20:57:40; 20:59:40-21:0659. Detective Aaron told Mr. Pennington that he was there to protect peoples rights, public safety, et cetera. And certainly yours, State s Ex. 1, 20:57:49-20:58:03, but Detective Aaron did nothing more than have Mr. Pennington read the Warning out loud and sign it. State s Ex. 1, 20:58:19-20:59:40. Detective Aaron asked no questions to make sure that Mr. Pennington actually understood what he was signing. He did not even ask Mr. Pennington whether he was willing to give up his rights under Miranda. Detective Aaron made no effort to explain to Mr. Pennington what the consequences would be if Mr. Pennington talked to him. Instead, Detective Aaron minimized the importance of the Miranda Warning when he described the Miranda Warning as some paperwork we go through so we can visit. State s Ex. 1, 20:58:04-20:58:08. After Detective Aaron had Mr. Pennington read the Miranda Warning, he did not make any effort to explain the warning. State s Ex. 1, 20:58:19-20:59:03; State s Ex

12 He simply asked, That make sense to you? and You understand it? State s Ex. 1, 20:59:00-20:59:03. Mr. Pennington answered yes to both questions. State s Ex. 1, 20:59:00-20:59:03. After Mr. Pennington signed the form, Detective Aaron diverted the conversation away from the Miranda Warning, without even asking whether Mr. Pennington was willing to talk. Detective Aaron asked Mr. Pennington more questions about his background. State s Ex. 1, 20:59:40. The conversation about Mr. Pennington s background continued for approximately seven minutes, then Detective Aaron asked Mr. Pennington if he knew Stephanie. State s Ex. 1, 20:59:42-21:06:59, 21:07:00. After four minutes of talking about Stephanie and the other members of her household, Detective Aaron turned the conversation toward the date of the alleged offense. State s Ex. 1, 21:09:19. Mr. Pennington told Detective Aaron that he was the babysitter for Serenity, age 3, and her baby brother, for several hours that day. State s Ex. 1, 21:09:21-21:09:48. After almost another half hour, Mr. Pennington said, I knew I made a mistake by touching her once with my hand. State s Ex. 1, 21:33:29. Detective Aaron suggested that Mr. Pennington should write a letter of apology to Stephanie and Serenity. State s Ex. 1, 21:35:56-21:36:30. Mr. Pennington said he would apologize so he could go his own way and Stephanie and Serenity could go their own way. State s Ex. 1, 21:36:58. Detective Aaron said, I ll give you that chance. State s Ex. 1, 21:37:07. Detective Aaron did not tell Mr. Pennington that whatever he wrote would be used to try to send him to prison, nor did he explain that Mr. Pennington would not be allowed to go his own way while Stephanie and Serenity went their own way. 11

13 Detective Aaron handed Mr. Pennington a Voluntary Written Statement form and Mr. Pennington was left alone in the room for approximately twelve minutes while he wrote the following letter: Dear Steffine I am sorry for touching your Dauther in the private part of her body and I like to say that I am very sorry for doing that I like to ask for your giviness and I ask the Lord to forgiviness and I hope you can for give me an let me go on with my Life and you go on with yours Please forgive me State s Ex. 1, 21:39:40 21:51:40; State s Exhibit 3. After Detective Aaron returned to the room, Mr. Pennington indicated that he put his finger in the girl s vagina a little bit. State s Ex. 1, 21:54:56. He said that he pulled her hand toward his lap but she pulled her hand away. State s Ex. 1, 21:57:43; 21:59:39. The question of the validity of a waiver is one of fact, and the appellate court will not overturn the trial court s finding unless it is clearly erroneous. Sparkling, 363 S.W.3d 46, 51 (Mo. App. W.D. 2011). In determining whether a waiver is knowing and intelligent, courts must examine the totality of the circumstances surrounding the interrogation, including the background, experience, and conduct of the accused. Id., citing, Zerbst, 58 S.Ct. 1019; and Bucklew, 973 S.W.2d at 90. Here, the court heard the evidence, reviewed the exhibits, and examined the circumstances surrounding the interrogation. The trial court made a factual determination that the evidence presented at the hearing on the motion to suppress did not establish that Mr. Pennington knowingly, voluntarily, and intelligently waived his right to remain silent, his right to counsel, or his 12

14 right to have counsel appointed for him (L.F ). The court found that the state failed to bear its burden of proof of showing by a preponderance of the evidence that the motion to suppress should be denied (L.F. 18). The trial court did not clearly err in sustaining Mr. Pennington s motion to suppress his statement and the letter (L.F ). The state argues that the trial court erred in finding that Mr. Pennington did not waive his rights under Miranda because there is a presumption of waiver if a suspect has been advised of his Miranda rights, understands those rights, and gives an uncoerced statement. Appellant s Brief at 11-18, citing, Berghuis v. Thomkins, 130 S.Ct (2010). Mr. Pennington does not dispute that Berghuis holds that an accused can be found to have implicitly waived his rights under Miranda if the prosecution shows that the accused was given the Miranda warnings, the accused understood the warnings, and the accused gave a statement that was not coerced. But the state has not established that Mr. Pennington necessarily understood the import of signing the Miranda warning or of the rights that he was giving up by talking to Detective Aaron. There is no presumption that a person who signs a Miranda warning necessarily understands what he is signing. The validity of the claimed waiver is still an issue of fact for the trial court to determine. Sparkling, 363 S.W.3d at 51. That Mr. Pennington read the Miranda Warning out loud and said that he understood it and then signed the warning does not necessarily establish that he knowingly, voluntarily and intelligently waived his rights to remain silent, to have an attorney, or to have counsel appointed for him. If the State establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate a 13

15 valid waiver of Miranda rights. Berghuis, 130 S.Ct. at 2261 (emphasis added). The prosecution must make the additional showing that the accused understood those rights; only where the prosecution shows that the Miranda warning was given and it was fully understood by the accused does an accused s uncoerced statement establish an implied waiver of the right to remain silent. Id. at Here, the trial court reviewed the evidence and found that while the Miranda warning was given, there was not a voluntary, knowing, and intelligent waiver (L.F. 18). Thus, the court found that there was no waiver, either explicit or implied. The court specifically found, the interrogating detective did not articulate any basis for concluding that Defendant Pennington knowingly waived his Miranda rights and did not ask him if he waived them (L.F. 18). This Court reviews the totality of the circumstances to determine whether there was substantial evidence to support the trial court s decision. State v. Day, 987 S.W.2d 824, 825 (Mo. App. E.D. 1999). The trial court s ruling granting Mr. Pennington s Motion to Suppress Statements was supported by the evidence presented at the hearing on the motion, and should therefore be affirmed. 14

16 CONCLUSION Based on the foregoing Argument, Douglas E. Pennington respectfully requests that this Court affirm the trial court s ruling granting his Motion to Suppress. Respectfully submitted, /s/ Susan L. Hogan Susan L. Hogan #33194 APPELLATE DEFENDER Office of State Public Defender Western Appellate Division 920 Main Street, Suite 500 Kansas City, Missouri Tel: 816/ Fax: 816/ Counsel for Appellant 15

17 Certificate of Compliance and Service I, Susan L. Hogan, hereby certify as follows: 1. The attached brief complies with the limitations contained in Rule 84.06(b). The brief was completed using Microsoft Word, Office , in Times New Roman size 13 point font. Excluding the cover page, the signature block, this certification and the certificate of service, the brief contains 3,245 words, which does not exceed the word limit for a respondent s brief under this Court s Special Rule. 2. This brief has been scanned for viruses using a Symantec Endpoint Protection program, which the Public Defender System updated on October 12, According to that program, the electronically-filed copy provided to this Court and to the Attorney General is virus-free. This brief was completed and electronically filed in compliance on October 12, A true and correct copy of the attached brief was sent through the e-filing system on October 12, 2012, to Joseph W. Vanover, Assistant Platte County Prosecuting Attorney, at /s/ Susan L. Hogan Susan L. Hogan 16

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