              In the Missouri Court of Appeals
                      Eastern District
                                            DIVISION II
STATE OF MISSOURI,                               ) No. ED104175
                                                 )
       Appellant,                                )
                                                 ) Appeal from the Circuit Court
                                                 ) of Marion County - Hannibal
       vs.                                       ) Cause No. 13MR-CR00533
                                                 )
JEFFREY J. NICHOLS,                              ) Honorable Rachel L. Bringer-Shepherd
                                                 )
       Respondent.                               ) Filed: August 30, 2016


                                             OPINION

       This is an interlocutory appeal in which the State of Missouri (“the State”) appeals the

trial court’s order granting Jeffrey Nichols’s (“Defendant’s”) motion to suppress his statements

made during a police interview. In the underlying criminal case, Defendant was charged with one

count of first-degree murder, three counts of first-degree assault, one count of second-degree

assault, four counts of first-degree robbery, two counts of first-degree burglary, one count of

second-degree burglary, two counts of first-degree tampering, one count of stealing, one count of

knowing burning or exploding, and three counts of armed criminal action. We reverse the grant

of Defendant’s motion to suppress and remand for further proceedings.

                                       I.      Jurisdiction

       Before we discuss the background and merits of the State’s appeal, we will address

Defendant’s contention that jurisdiction lies in the Supreme Court of Missouri and this appeal


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should be dismissed. Jurisdiction is proper in this Court. “The court of appeals shall have general

appellate jurisdiction in all cases except those within the exclusive jurisdiction of the supreme

court.” Mo. Const. art. V, § 3. Therefore, any appeal not reserved for the Supreme Court of

Missouri lies properly in the Missouri Court of Appeals. Defendant argues that jurisdiction lies

in the Supreme Court of Missouri under § 547.200.3, RSMo since this case “involve[s] first

degree murder and capital murder.” We disagree.

       Section 547.200.3 references two statutes (§§ 565.001 and 565.003) that were repealed

and replaced, effective July 1, 1984. RSMo. Cum. Supp. 1983. The State argues that once these

statutes were repealed their references in § 547.200.3 no longer intended to confer jurisdiction to

the Supreme Court. We agree. Moreover, even if the statute intended to confer original appellate

jurisdiction to the Supreme Court of Missouri, it would not have authority to do so. Mo. Const.

art. V, § 3 controls the Supreme Court’s jurisdiction, and it cannot be enlarged or diminished by

a statute. See Cochran v. State, 835 S.W.2d 954, 955 (Mo. App. W.D. 1992).

       Under Mo. Const. art. V, § 3, the Supreme Court has exclusive appellate jurisdiction

over, inter alia, “all cases where the punishment imposed is death.” Although, this case involves

a charge of first-degree murder, “the punishment of death [has] not been imposed, and might

never be imposed.” Cochran, 835 S.W.2d at 956. Accordingly, the Supreme Court of Missouri

does not have exclusive jurisdiction over this interlocutory appeal, and therefore, our Court has

appellate jurisdiction. See Mo. Const. art. V, § 3. Based on the foregoing, Defendant’s request

for dismissal is denied.

                           II.    Factual and Procedural Background

       On April 1, 2013, Detective Tracy Whearty and Detective Mark Arnsperger of the

Moberly Police Department interviewed Defendant in an interview room at the Moberly Police



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Department about several crimes that occurred on or about March 31, 2013. The record contains

a transcript and video of it. Before the interview began, the detectives read Miranda1 warnings to

Defendant, then Defendant signed and initialed a Rights of Persons form to confirm he

understood the warnings. Shortly thereafter, Defendant began answering the detectives’

questions about the series of crimes. Defendant admitted that he had stolen a knife, and he drew

a picture of it for the detectives. Shortly after drawing the picture, the Defendant stated that he

wanted a lawyer present before proceeding with the interview. Here is the pertinent part of the

conversation between Detective Arnsperger and Defendant:

           Det. Arnsperger:          All right. Where did that knife come from?

           Defendant:                From Wal-Mart.

           Det. Arnsperger:          I mean what section out at Wal-Mart?

           Defendant:                The sporting goods aisle. Honestly, from this point on, I
                                     want a lawyer present.

           Det. Arnsperger:          Okay. Well, you’re getting charged with murder.

           Defendant:                Who, me?

           Det. Arnsperger:          Yeah, you.

           Defendant:                Just me?

           Det. Arnsperger:          Yeah.

           Defendant:                That’s crazy.

           Det. Arnsperger:          Why?

           Defendant:                How am I getting charged with murder?

           Det. Arnsperger:          Do you want to continue or do you want to stop?

           Defendant:                I’m -- I want to continue. This is crazy. Who the hell did I
                                     murder?
1
    Miranda v. Arizona, 384 U.S. 436, 478 (1966).

                                                       3
          After this exchange, Defendant made several incriminating statements. Defendant then

timely filed a motion to suppress his statements. The trial court granted Defendant’s motion,

finding that Detective Arnsperger initiated conversation with Defendant after Defendant invoked

his right to counsel and that Defendant’s statement that he ‘want[ed] to continue’ did not

sufficiently constitute a knowing or voluntary waiver. The State then filed this interlocutory

appeal.

                                       III.     Standard of Review

   The State is entitled to appeal a trial court’s order suppressing evidence under § 547.200.1.

State v. Sparkling, 363 S.W.3d 46, 49 (Mo. App. W.D. 2011). “When reviewing a trial court’s

ruling on a motion to suppress, the inquiry is limited to whether the court’s decision is supported

by substantial evidence.” State v. Harris, 477 S.W.3d 131, 140 (Mo. App. E.D. 2015).

   We will only reverse a trial court’s ruling on a motion to suppress if the decision is clearly

erroneous. Id. This Court considers the record made at the suppression hearing and at trial, and

we “review all facts and reasonable inferences therefrom in the light most favorable to the trial

court’s decision.” State v. Byrd, 389 S.W.3d 702, 707 (Mo. App. E.D. 2012). Our Court gives

deference to the trial court’s factual findings and credibility determinations, but we review all

questions of law de novo. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998).

                                              IV.   Discussion

          In the State’s sole point on appeal, it alleges that the trial court clearly erred in granting

Defendant’s motion to suppress his statements because Defendant voluntarily, knowingly, and

intelligently waived his previously invoked right to counsel by reinitiating discussion with the

detectives. We agree.




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       “The Fifth Amendment’s prohibition against self-incrimination provides an accused the

right to counsel during custodial interrogation.” State v. Nicklasson, 967 S.W.2d 596, 606 (Mo.

banc 1998) (citing Miranda v. Arizona, 384 U.S. 436, 478 (1966)). A custodial interrogation

occurs when questioning has been “initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of action in any significant way.”

Miranda, 384 U.S. at 444. “Determining whether the [defendant’s] right to counsel has been

violated during a custodial interrogation requires a two-step analysis.” State v. Norman, 431

S.W.3d 563, 569 (Mo. App. E.D. 2014). The first step is to determine if the defendant properly

invoked his right to counsel, and the second step is to determine whether he voluntarily,

knowingly, and intelligently “waived his previously invoked right to counsel by initiating further

conversation.” Id. In this case, since both parties agree that Defendant effectively invoked his

right to counsel by stating that he “wante[ed] a lawyer present,” our analysis focuses on step two.

Additionally, there is no dispute that Defendant was in custody at all times during the interview.

       The State bears the burden of showing that the accused initiated further discussion and

that he voluntarily, knowingly, and intelligently waived his right to counsel. Byrd, 389 S.W.3d at

708. On review, we “indulge every reasonable presumption against waiver of fundamental

constitutional rights.” State v. Bucklew, 973 S.W.2d 83, 90 (Mo. banc 1998) (quoting Johnson v.

Zerbst, 304 U.S. 458, 464 (1938)).

       A. Reinitiating Conversation

       “A request for counsel bars further interrogation until an attorney is present, unless the

accused in the interim voluntarily initiates discussion.” State v. Bannister, 680 S.W.2d 141, 147-

48 (Mo. banc 1984) (citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)). The United States

Supreme Court established this requirement in Edwards to “ensure that police will not take



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advantage of the mounting coercive pressures of prolonged police custody by repeatedly

attempting to question a suspect who previously requested counsel until the suspect is badgered

into submission.” Maryland v. Shatzer, 559 U.S. 98, 105 (2010) (emphasis added). Edwards

created a “judicially crafted rule,” which is only justified when the benefits of its prophylactic

purpose outweigh its costs. Id. at 106. Extending the Edwards rule “yields diminished benefits”

and “increases its costs.” Id. at 108. The fundamental purpose of the Edwards rule is to preserve

an accused’s Fifth Amendment rights by preventing coerced, involuntary confessions. See id at

106. However, an overly broad application of the Edwards rule forces courts to suppress

voluntary confessions and “deters law enforcement officers from even trying to obtain [them]”.

Id. at 108; See Minnick v. Mississippi, 498 U.S. 146, 151 (1990). Suppressing voluntary

confessions would also impose a heavy cost; confessions are “trustworthy and highly probative

evidence,” and therefore, “essential to society’s compelling interest in finding, convicting, and

punishing those who violate the law.” Id; Shatzer, 559 U.S. at 108 (quoting Moran v. Burbine,

475 U.S. 412, 426 (1986).

         In the instant case, the State contends that Defendant reinitiated a conversation about the

alleged crimes when he stated, “I want to continue.” In Oregon v. Bradshaw, 462 U.S. 1039,

1045 (1983), the United States Supreme Court reasoned that making an inquiry that shows the

accused “evinced a willingness and a desire for a generalized discussion about [an]

investigation” is sufficient to show that the accused “initiated” communication with the police. Id

at 1045-46. Nonetheless, a defendant’s willingness to discuss the conversation must be of his

own volition, something which cannot be established if defendant was merely “respond[ing] to

[a] further police-initiated custodial interrogation.” Edwards, 451 U.S. at 484.




                                                  6
       In Bradshaw, the defendant asked the police, “What is going to happen to me now?”

Bradshaw, 462 U.S. at 1045. The U.S Supreme Court found that the defendant “initiated” further

conversation about the investigation by demonstrating his willingness and desire for a

generalized discussion. Id. Immediately following the defendant’s question, the police reminded

the defendant that he was not obligated to speak with them. Id. at 1046. The U.S. Supreme Court

noted that the reminder further supported that “there was not a violation of the Edwards rule.” Id.

Similarly, here, after he invoked his right to counsel, Defendant asked the detectives, “How am I

getting charged with murder?” This shows that Defendant “evinced a willingness and a desire [to

have] a generalized discussion about the investigation.” See id. at 1045-46. Additionally, like in

Bradshaw, Detective Arnsperger immediately reminded Defendant that he had no obligation to

talk to him without an attorney (“Do you want to continue or do you want to stop?”). Thus,

assuming Defendant’s statement that he “want[ed] to continue” was not a product of

interrogation, Defendant would be re-initiating the custodial interrogation. See Rhode Island v.

Innis, 446 U.S. at 299-300 (1980) (explaining that statements made “freely and voluntarily

without any compelling influences” are not “the product of interrogation.”); see also Edwards,

451 U.S. at 484 (stating that “a valid waiver of [a previously invoked right to counsel] cannot be

established by showing only that [a suspect] responded to further police-initiated custodial

interrogation.”).

       Both Missouri and the Eighth Circuit employ the same definition of “custodial

interrogation,” relying primarily on the United States Supreme Court’s interpretation in Miranda

and Innis. See United States v. Orr, 636 F.3d 944 (8th Cir. 2011); see also United States v. Allen,

247 F.3d 741 (8th Cir. 2001); State v. Bell, 488 S.W.3d 228, 242 (Mo. App. E.D. 2016); State v.

Wade, 866 S.W.2d 908, 910-11 (Mo. App. W.D. 1993); State v. Myers, 291 S.W.3d 292, 295-96



                                                 7
(Mo. App. S.D. 2009); Byrd, 389 S.W.3d at 702. In Miranda v. Arizona, the United States

Supreme Court defined “custodial interrogation” as “questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of his freedom of action

in any significant way.” 384 U.S. at 444. Interrogation refers to express questioning and its

“functional equivalent,” which includes “any words or actions by the police…that the police

should know are reasonably likely to elicit an incriminating response from the suspect.” Innis,

446 U.S. at 301. However, the police are not required to cut off all conversation. State v. Cook,

67 S.W.3d 718, 722 (Mo. App. S.D. 2002). In analyzing whether an interrogation occurred, we

primarily focus on the perceptions of the suspect, not the intent of the police. Bell, 488 S.W.3d at

242. “Inquiries or statements…relating to routine incidents of the custodial relationship, will not

generally initiate a conversation” that constitutes an interrogation. Bradshaw, 462 U.S. at 1045.

Moreover, the definition of interrogation excludes words or actions “normally attendant to arrest

and custody.” Innis, 446 U.S. at 301. Further, courts in Missouri and the Eighth Circuit have

consistently held that mere informative statements about a defendant’s charges and evidence

against him are not the functional equivalent of interrogation. See State v. Terry, No. WD 78345,

2016, WL 3688486 (Mo. App. W.D. July 12, 2016) (stating that “[t]here is no support in

Missouri case law that being informed of pending charges is, in and of itself, tantamount to an

interrogation.”); see also United States v. Barnes, 195 F.3d 1027, 1029 (8th Cir. 1999) (stating

that doing no more than telling a defendant that he was going to be booked for possession of a

firearm did not constitute an interrogation); U.S. v. McGlothen 556 F.3d 698, 701-02 (8th Cir.

2009) (explaining that “the officer’s words indicating that [the defendant] was to be charged with

possession of a firearm were statements of fact, not the functional equivalent of an




                                                 8
interrogation.”); United States v. Wipf, 397 F.3d 677, 685 (8th Cir. 2005); Bell, 488 S.W.3d at

243.

       In U.S. v. Allen, the Eighth Circuit noted that “a simple description of the status of [an]

ongoing investigation,” without accompaniment of other threats or compelling pressure, is “not

designed to, nor [is] it reasonably likely to, elicit an incriminating response.” Allen, 247 F.3d at

765. In Allen, after the suspect participated in a police lineup, a detective informed the suspect

that three out of the four eyewitnesses in the case had placed him at the scene of the crime. Id. at

764. The Eighth Circuit held that a detective informing the defendant of his lineup results did not

constitute an interrogation. Id. at 765. The Court found that keeping a suspect informed of the

investigation’s progress should be “encouraged” and that it “contributes to the intelligent

exercise of his judgment and may likely make firm his resolve to refuse to talk to the police

without counsel.” Id. In the present case, much like the suspect in Allen, Defendant was simply

informed of his charges without any other threats or compelling pressure. The video interview

shows that neither detective raised his or her voice during the interview, and both detectives

remained casually seated while communicating with Defendant. The video interview also reflects

that the detectives’ conduct was not threatening.

       The facts in United States v. Barnes are even more similar to the case at hand. See.

Barnes, 195 F.3d at 1028-29. In Barnes, while the defendant was in custody and had invoked his

right to counsel, an officer informed him that he was going to be booked for possession of a

firearm. Id at 1029. The defendant responded that he “didn’t think so.” Id. The officer asked the

defendant what he meant, and the defendant proceeded to make inculpatory statements. See id. In

that case, the Eighth Circuit found that neither the detective’s statement that the defendant was

being booked for possession of a firearm, nor the detective’s question to clarify what the



                                                  9
defendant meant by “didn’t think so” constituted an interrogation. Id. Thus, the defendant’s

subsequent admissions were not products of interrogation, and the statements were admissible.

Id.

        Similar to Barnes, in this case, Detective Arnsperger informed Defendant of his charges

and then followed up with an express question to clarify Defendant’s response.2 As in Barnes,

Detective Arnsperger’s statement of charges and clarifying question do not qualify as

interrogations. Detective Arnsperger demonstrated that he had ended the interrogation and he

was respecting Defendant’s right to counsel by asking Defendant if he wanted to stop or continue

discussing the investigation. Accordingly, Defendant’s statement that “he want[ed] to continue”

re-initiated communication about the investigation, and any incriminating statements he made

after that should not be suppressed if he validly waived his right to counsel.

        Therefore, Detective Arnsperger’s statement that Defendant was being “charged with

murder” does not constitute an interrogation, and neither should his clarifying question of

“why?” in response to Defendant’s ambiguous comment.3

        Defendant relies primarily on State v. Bell to show Defendant did not re-initiate

communication with the police after invoking his right to counsel. Bell, 488 S.W.3d at 242.

Defendant’s reliance is misplaced. The police activity in Bell is vastly different from Detective

Arnsperger’s and Detective Whearty’s. In Bell, our Court focused on the detectives’ persistent

badgering and “pleas to Bell’s conscience” that was deliberately designed to “coax Bell into

waiving his right to counsel.” Id. at 243. The detectives told Bell that the killing was “ruthless”

and that the “jury would have no mercy” if he could not explain what happened. Id at 244. In



2
  Defendant: “Who, me?...That’s crazy.”
  Detective Arnsperger: “Why?”
3
  “That’s crazy.”

                                                 10
Bell’s first interview, he asserted his right to counsel several times over a thirty-five minute

conversation. Id. Then, several hours later, Bell was taken into another interview room and

questioned for an hour before he agreed to talk without his counsel present. Id.

          Unlike in Allen and Barnes, our Court in Bell found that “the detectives went far beyond

simply reading facts [to Bell].” Id. at 243. The detectives made “numerous pleas to Bell’s

conscience in a deliberate attempt to coax Bell into waiving his right to trial.” Id. Accordingly,

our Court held that the detectives should have known that their statements were “reasonably

likely to provoke Bell” into waiving his right to counsel and make incriminating statements. Id.

          The present case is much more similar to Allen and Barnes than Bell. Detective

Arnsperger and Whearty did not make pleas to Defendant’s conscience, nor did they act

coercively to induce an involuntary confession. Rather, the detectives merely informed

Defendant of his charges. They did not conduct themselves in a way that was “reasonably likely

to elicit an incriminating response.” Accordingly, the detectives’ words and actions cannot be

deemed the functional equivalent of a custodial interrogation, and Defendant reinitiated

conversation when he stated that he wanted to continue discussing the crimes in question.

          B. Valid Waiver of Right to Counsel

          A defendant’s waiver of his right to counsel will be considered valid only if he waives his

right voluntarily, knowingly, and intelligently. Shatzer, 559 U.S. at 104. Whether waiver is

“voluntary” and “knowing and intelligent” are two distinct inquiries. Edwards, 451 U.S. 484

(1981).

                        i.   Voluntary Waiver

          “The test for voluntariness is whether, under the totality of the circumstances, the

defendant was deprived of free choice to admit, to deny, or to refuse to answer and whether



                                                   11
physical or psychological coercion was of such a degree that defendant’s will was overborne at

the time he confessed.” State v. Johnson, 207 S.W.3d 24, 45 (Mo. banc 2006). The factors used

to make that determination include “whether the defendant was advised of his rights and

understood them, the defendant’s physical and mental state, the length of questioning, the

presence of police coercion or intimidation, and the withholding of physical needs.” Id. Although

voluntariness is measured under the totality of the circumstances, the presence of coercive police

activity is the primary factor. See State v. Smith, 944 S.W.2d 901, 910 (Mo. banc 1997). In fact,

“[C]oercive police activity is a necessary predicate to the finding that a confession is not

‘voluntary.’” Colorado v. Connelly, 479 U.S. 157, 170 (1986) (emphasis added).

       Here, Detective Arnsperger informed Defendant that he was being charged with murder,

however, informing a suspect of his charges does not constitute coercion. Moreover, there is

nothing in the record to indicate that Defendant was in a vulnerable physical or mental state. The

length of questioning was reasonable too; Defendant waived his right to have a lawyer present by

saying that he “want[ed] to continue” only nineteen minutes after questioning began.

       Most importantly, the record reflects that neither Detective Whearty nor Detective

Arnsperger acted in an improper, coercive manner. There is no evidence that Defendant’s will

was “overborne” during the interview. Defendant does not even claim that the detectives were

coercive. Moreover, the State proffered enough evidence with the video interview and transcript

of Defendant’s custodial questioning to demonstrate that the detectives did not act in a coercive

manner. Accordingly, under the totality of the circumstances, Defendant’s waiver of his right to

counsel and subsequent statements were voluntary.




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                     ii.   Knowing and Intelligent Waiver

       We consider the totality of the circumstances when determining whether a defendant

waives his rights “knowingly and intelligently.” State v. Powell, 798 S.W.2d 709, 713 (Mo. banc

1990). “The requirement that a waiver of rights be knowing and intelligent does not mean that a

defendant must know and understand all of the possible consequences of the waiver.” Id. Rather,

the requirement hinges on whether the defendant understood the warnings and “that he at all

times knew that he could stand mute and request a lawyer, and that he was aware of the State’s

intention to use his statements to secure a conviction.” Id. (quotations omitted). “A knowing and

intelligent waiver of the right to silence is normally shown by having a police officer testify that

he read the accused his rights, asked whether the rights were understood, and received an

affirmative response.” State v. Wise, 879 S.W.2d 494, 505 (Mo. banc 1994) (overruled on other

grounds by Joy v. Morrison, 254 S.W.3d 885, 888 n.7 (Mo. banc 2008)).

       Here, Defendant was given his Miranda warnings at the beginning of the interview, both

verbally and in writing on his Rights of Person form. Defendant was then told to sign the form

and initial each Miranda warning if he understood them. The video interview shows that

Defendant signed and initialed the form without asking any questions or exhibiting any other

signs of confusion. When, as in this case, “one is informed of his right to remain silent under

Miranda, and understands his right to remain silent under Miranda, and thereafter makes

voluntary statements, it is absurd to say that such person has not made a knowing and intelligent

waiver of his right to remain silent.” Bucklew, 973 S.W.2d at 90. This creates a strong

presumption that Defendant understood the warnings and his rights.

       In addition to signing the Rights of Person form, Defendant further demonstrated his

understanding of his Miranda warnings by invoking his right to counsel, saying, “Honestly, from



                                                 13
this point on, I want a lawyer present.” See Powell, 798 S.W.2d at 713. This shows that

Defendant knew he could “stand mute and request a lawyer.” Detective Arnsperger even

reminded Defendant that he had the choice to continue talking or wait for counsel by asking, “Do

you want to continue or do you want to stop?” Also, at the conclusion of the interview,

Defendant confirmed in his written statement that he completed immediately after the interview

ended that he was “warned and advised” of his rights on the Rights of Persons form.

        Further, in his interview with the police, Defendant admitted he had been in prison at

least two times before he was investigated for this case. Accordingly, he had exposure and

familiarity with his rights before the investigation at issue, which further supports that Defendant

knew and understood his rights and that he waived them by reinitiating conversation with the

detectives. See State v. Hunter, 840 S.W.2d 850, 859 (Mo. banc 1992) (noting that “prior contact

with the criminal justice system is certainly a factor” in determining whether waiver is knowing

and intelligent).

        Defendant was given his rights orally and in written form before the interview

commenced. He acknowledged that he understood his rights by signing and initialing his Rights

of Persons form before the interview, and he confirmed his understanding again by signing his

written statement at the conclusion of the interview.

        Moreover, there is nothing in the record to suggest that Defendant did not understand his

rights. Based on the forgoing, we find that State demonstrated that Defendant knowingly and

intelligently waived his right to remain silent until counsel was present.

        C. Conclusion

        Because Defendant reinitiated the conversation after he voluntarily, knowingly, and

intelligently waived his right to counsel by saying “I want to continue” and it was not a product



                                                 14
of police interrogation, the trial court clearly erred in granting Defendant’s motion to suppress

statements. Point granted.

                                        V.     Conclusion

       For the reasons set forth above, we reverse the trial court’s order granting Defendant’s

motion to suppress his statements, and we remand for further proceedings consistent with this

opinion.




                                              _______________________________
                                              Colleen Dolan, Judge

Sherri B. Sullivan, P.J., concurs.
Roy L. Richter, J., concurs.




                                                15
