STATE OF MISSOURI,                          )
                                            )
       Plaintiff-Respondent,                )
                                            )
vs.                                         )    No. SD32459
                                            )
JAMES CARL DUKE III,                        )    Filed: April 21, 2014
                                            )
       Defendant-Appellant.                 )

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                  Honorable Thomas E. Mountjoy Circuit Judge

AFFIRMED

       James C. Duke ("Defendant") appeals from his convictions after a bench

trial for first-degree murder and armed criminal action. See §§ 565.020, 571.015,

RSMo (2000). Defendant presents three points on appeal: (1) the trial court

clearly erred in admitting Defendant's confession into evidence; (2) the trial court

abused its discretion in allowing a detective to testify he found no evidence of

self-defense; and (3) the trial court plainly erred in permitting the prosecutor to

discuss case law during closing argument. These arguments are without merit,

and we affirm the trial court's judgment.

                    Factual and Procedural Background

       On March 21, 2010, Defendant shot Kody Ray ("Victim") on Victim's front

porch while Victim's family was celebrating a child's birthday party inside.
Victim died as a result of a "relatively straight-through shot" just behind his ear.

Ultimately, investigators developed Defendant as a suspect in the shooting, and

Victim's uncle identified Defendant in a photographic line up.

          On March 25, 2010, police officers arrested Defendant as he left his

parents' home. Defendant was transported to the police station to be interviewed

by Detective Todd King ("Detective King"). Once at the station Defendant was

taken to an interview room. Detective King read Defendant his Miranda1 rights

from a form. Defendant stated he understood those rights. Defendant then made

a statement in which he admitted shooting Victim. Defendant explained there

was a "beef" between Victim and one of Defendant's friends. According to

Defendant, Victim was known to have a gun. Defendant and his friend decided

Defendant would be the one to confront Victim because Defendant was the only

one of their group who had a gun. Defendant claimed he did not try to kill

Victim, but he thought Victim was going to pull a gun on him.

          Defendant was charged with first-degree murder and armed criminal

action. Defendant filed a motion to suppress the statement he made to Detective

King, alleging, among other things, that his relinquishment of his Miranda

rights was not knowing and voluntary. The trial court denied the motion after a

hearing. Defendant then waived his right to a trial by jury and received a bench

trial. The trial court found Defendant guilty as charged and sentenced Defendant

to life without parole for first-degree murder and thirty years incarceration for

armed criminal action. This appeal followed.



1
    See Miranda v. Arizona, 384 U.S. 436 (1966).

                                              2
                                Point I: Miranda

       In his first point, Defendant argues the trial court clearly erred in denying

his motion to suppress the statement he made to Detective King because

Defendant's relinquishment of his right to remain silent was rendered unknowing

and involuntary by statements made by Detective King during the Miranda

warning. This argument is without merit.

       When a criminal defendant files a motion to suppress, the State bears the

burden of proving the motion should be denied by a preponderance of the

evidence. See State v. Pennington, 408 S.W.3d 780, 784 (Mo. App. W.D.

2013). Appellate review of a trial court's decision regarding a motion to suppress

is for clear error which will be found when the appellate court is left "with a

definite and firm impression that a mistake was made." State v. Ruff, 360

S.W.3d 880, 885 (Mo. App. S.D. 2012) (quoting State v. Jackson, 248 S.W.3d

117, 121 (Mo. App. S.D. 2008)). "In the course of our review, we consider the

records of both the suppression hearing and the trial, and we view the entirety of

the record before us in the light most favorable to the trial court's ruling on the

motion to suppress." Id. (citations omitted).

       Viewed in that light, the following additional facts surrounding

Defendant's statement to Detective King were adduced at the suppression

hearing and at trial. After his arrest, Defendant was taken to the police station

and placed in an interview room. A short time later, Detective King entered the

room and removed Defendant's handcuffs. The following exchange occurred on

the video that was made of the interview:

                                          3
       DETECTIVE KING: Oh, well, lots of things, lots of things going on
       and . . . of course you're down here. I'm sure you've got a good idea
       of why you're down here. We need to a, need to get a few things
       lined out because there's lots of people, lots of people telling us
       things and I think you probably need to get your side out there.
       Ok? So I'm going to, uh, since you're down here I'm gonna, going to
       advise you your rights and then we'll kind of go from there and uh
       get your side to the story out there. All right? If I didn't tell you
       when I walked in my name is Todd, the detective down here. I'll, I'll
       shoot you straight, answer your questions the best I can, and we'll
       kind of go from there. All right?

       DEFENDANT: All right.

       DETECTIVE KING: Do you like, you like to be called James or is
       there something else you like to be called?

       DEFENDANT: James, it don't matter. James, JD, you can call me
       by my first and . . .

       DETECTIVE KING: Ok JD. All right. What year did you finish in
       school?

       DEFENDANT: Uh, 2009.

       DETECTIVE KING: Um, I mean what grade?

       DEFENDANT: Um, Twelfth.

       DETECTIVE KING: The Twelfth grade?

       DEFENDANT: Yea.

Detective King then read from a statement of rights form to Defendant. When he

finished reading the form, Detective King asked Defendant if he understood.

Defendant replied, "I think. Um. Only if you can't afford an attorney one will be

appointed to represent you? Is that free or do you gotta pay for that?" Detective

King told Defendant that if that were the case, "the courts will appoint, will get

you an attorney." Defendant said, "All right. That's cool." Then Detective King

asked Defendant to sign the form to show he understood the rights.



                                          4
       The form was titled "Statement of Rights[.]" The form was divided into

two sections. The upper section of the form stated as follows:

       You have the right to remain silent.

       Anything you say can and will be used against you in a court of law.

       You have the right to talk to a lawyer before making any statement
       or answering any question, and you may have him present during
       questioning.

       If you cannot afford an attorney, one will be appointed to represent
       you before any questioning if you wish.

       You can decide at any time to exercise these rights and not answer
       any questions or make any statements.

The second section of the form included the printed line, "I have had the above

statement of my rights read to me, and I fully understand each of them."

Defendant signed the form indicating he understood the rights. Defendant then

made his statement regarding his involvement in Victim's shooting.

       At the hearing on the motion to suppress, Detective King testified

Defendant appeared to comprehend what they were discussing at all times.

Detective King further stated he made no threats or promises to Defendant

during the course of the interview.

       Defendant's attorney also questioned Detective King regarding his advice

to Defendant on the right to remain silent. Detective King admitted the word

"waiver" was not printed on the statement of rights form and that he did not use

the word "waiver" in speaking with Defendant. He testified the form used is

called a statement of rights rather than a waiver of rights.

       After listening to the parties' arguments and allowing them time to submit

written suggestions, the trial court denied Defendant's motion to suppress.


                                          5
       "The Miranda Court formulated a warning that must be given to suspects

before they can be subjected to custodial interrogation." Berghuis v.

Thompkins, 560 U.S. 370, 380 (2010). In the present case there is no dispute

Defendant was subjected to custodial interrogation, so the only issue is whether

Defendant's decision to relinquish his right to remain silent was knowing and

voluntary.

       An inquiry into whether the State has demonstrated a valid

relinquishment of the right to remain silent "has two distinct dimensions."

Moran v. Burbine, 475 U.S. 412, 421 (1986). "First, the relinquishment of the

right must have been voluntary in the sense that it was the product of a free and

deliberate choice rather than intimidation, coercion, or deception." Id. The

second requirement is that the relinquishment "must have been made with a full

awareness of both the nature of the right being abandoned and the consequences

of the decision to abandon it." Id. See also Thompkins, 560 U.S. at 382-83.

       Here, the first requirement was easily demonstrated. Detective King

testified he made no threats or promises to Defendant during the interview.

Other than stating he would like to hear Defendant's side of the story, there was

no intimidation or deception by Detective King or anyone else. The interview

lasted less than an hour and there were no physically coercive tactics. Defendant's

relinquishment of his Miranda rights was a free and deliberate choice. Thus,

we are left with the issue of whether Defendant knowingly relinquished his right

to remain silent.

       As to the second requirement, "[t]he main purpose of Miranda is to

ensure that an accused is advised of and understands the right to remain silent

                                         6
and the right to counsel." Thompkins, 560 U.S. at 383. "The prosecution

therefore does not need to show that a waiver of Miranda rights was express."

Id. at 384. For this reason, "[a]n accused's uncoerced statement after being

given a Miranda warning establishes an implied waiver where the prosecution

makes an additional showing that the accused understood the Miranda

warning." Pennington, 408 S.W.3d at 785.

       In the present case, there was evidence showing Defendant relinquished

his Miranda rights through his actions. Prior to any questioning, Detective

King determined Defendant had graduated high school and understood the

English language. Detective King then read the Miranda warnings from a form.

Defendant said he understood and signed the form indicating he understood

these rights. Defendant then began answering questions about Victim's death.

These facts show Defendant was provided with Miranda warnings, Defendant

understood the Miranda warnings, and Defendant made an uncoerced

statement. Consequently, Defendant's actions resulted in a knowing

relinquishment of his Miranda rights. See Thompkins, 560 U.S. at 383.

       Defendant argues the evidence does not show he understood the rights

explained to him. In support he states, "[b]efore any Miranda warnings were

administered, Detective King made sure to tell [Defendant] that they were going

to talk about his side of the story, as if it were a foregone conclusion, and he

minimized the warnings as just a formality and that they would 'get his side of the

story out there' as soon as he read them." Defendant contends the use of this

language was a stratagem to frustrate the purpose of the Miranda warnings.

This argument is without merit for two reasons.

                                          7
       First, the argument misunderstands the nature of the knowledge required

before a suspect may validly relinquish his right to remain silent. As the Supreme

Court of Missouri has stated, "[t]he 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." State v. Powell,

798 S.W.2d 709, 713 (Mo. banc 1990). "Rather, it requires that the defendant

understood the warnings themselves; '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. (quoting Moran, 475 U.S. at

422). Here, Defendant stated he understood the rights.

       Second, Defendant's argument ignores the language of the warnings

themselves. The warnings included the statement, "[y]ou can decide at any time

to exercise these rights and not answer any questions or make any statements."

(Emphasis added). Defendant indicated he understood each of the rights. The

content of that warning was not eviscerated by Detective King's suggestion that

this was Defendant's opportunity to explain his side of the story.

       Defendant also discusses Pennington in support of his conclusion that

the procedure in this case was improper. He states the Pennington case

disapproved the practice of "modifying and eliminating any mention of 'waiver' in

their Miranda forms[.]" This statement misconstrues the facts and analysis in

Pennington.

       The court in Pennington did have a footnote stating, "We note, however,

while not mandated, the inclusion of waiver language in the Miranda form

would have avoided the issue faced in this case." Id. at 785 n. 6. However, the

                                         8
court in Pennington actually held the statement was admissible even though

the form lacked the waiver language. Id. at 785-86.

       The primary thrust of Defendant's argument appears to be that there was

no valid relinquishment of the right to remain silent because Detective King did

not use the word "waiver" during the statement of rights or the interview and did

not specifically ask the Defendant if he "waived" his rights. Defendant points to

no cases, and we are unable to find any cases, which hold the interrogating officer

must specifically ask "Do you wish to waive your right to remain silent?" in order

for the prosecution to prove a valid relinquishment of the right to remain silent.

Indeed, the fact that the word "waiver" was not used does not mean a waiver did

not occur under the circumstances of this case. See Thompkins, 560 U.S. at

382-83.

       In sum, Defendant was given a correct statement of his Miranda rights,

Defendant stated he understood those rights, signed a form containing those

rights, asked a valid question regarding one of his rights and received a valid

answer. Defendant subsequently elected to go forward and make a statement.

Defendant knowingly relinquished those rights. The trial court did not clearly err

denying the motion to suppress.

       Defendant's first point is denied.

                    Point II: Alleged Opinion Testimony

       In his second point, Defendant claims the trial court abused its discretion

in "allowing Detective King to testify that he did not find any evidence that the

shooting was done in self-defense[.]" Defendant argues this testimony was

inadmissible because it was an opinion regarding an ultimate issue in the case.

                                            9
          The following additional facts are necessary to the resolution of this claim.

Near the end of the direct examination of Detective King, the prosecutor asked,

"In the interview the defendant tells you that kind of like, 'It's a self-defense, I

had to do it.' Did you find any evidence that this was done in self-defense?"

Defendant's attorney objected, stating the answer would invade the province of

the court, and the trial court sustained the objection. The prosecutor then

attempted to lay a further foundation for the question, eliciting testimony that

Detective King had training in what evidence to look for to substantiate a self-

defense claim and that Detective King had looked for such evidence in this case.

When the prosecutor again asked if Detective King found any evidence that this

act was committed in self-defense, Defendant did not object or make a motion to

strike.

          As the State correctly argues, this claim was not preserved for appellate

review. Generally speaking, to preserve a claim of evidentiary error for appellate

review, a party must make an objection when that testimony is admitted at trial.

State v. Cochran, 365 S.W.3d 628, 632-33 (Mo. App. W.D. 2012). Here, while

Defendant objected the first time the prosecutor asked Detective King about

evidence of self-defense, Defendant did not object when Detective King

ultimately gave his testimony on the matter. As there was no contemporaneous

objection, Defendant's claim regarding this evidence is not preserved for review.

See State v. McWhorter, 240 S.W.3d 761, 763 (Mo. App. S.D. 2007) (holding

that a pretrial objection alone did not preserve a claim for appellate review).




                                            10
          Defendant has not requested review for plain error under Rule 30.20,2

which gives this Court discretion to review unpreserved claims of trial court error

for plain error resulting in manifest injustice or a miscarriage of justice. An

appellate court has complete discretion in determining whether to engage in

plain error review. State v. Edwards, 280 S.W.3d 184, 188 (Mo. App. E.D.

2009). Plain error review should be used sparingly and does not justify a review

of every error that has not been preserved for appellate review. Id. We decline

to engage in such review here. See id.; State v. Ficke, 892 S.W.2d 814, 818

(Mo. App. S.D. 1995).

          Defendant's second point is denied.

                   Point III: Alleged Improper Closing Argument

          In his final point on appeal, Defendant argues the trial court plainly erred

in allowing the prosecutor to discuss the facts of reported cases during the State's

closing argument. This argument is without merit because it fails to take into

account the difference between a jury trial and a bench trial.

          Defendant claims this argument was an improper discussion of facts

outside the record, and each of the cases he cites in support involved an alleged

argument of facts outside the record to a jury. Here, however, the argument is

more properly characterized as an argument of law, and it was made to a judge

sitting without a jury. Defendant cites no cases supporting the proposition that it

is error for a trial judge to listen to closing arguments from a lawyer in a bench

trial based on what the lawyer believes the governing law to be. Thus, we find

that Defendant has failed to demonstrate any error, plain or otherwise.

2   All rule references are to Missouri Court Rules (2013).

                                                   11
     Defendant's third point is denied.

                                Decision

     The trial court's judgment is affirmed.


MARY W. SHEFFIELD, J. - OPINION AUTHOR

GARY W. LYNCH, J. - CONCURS

DON E. BURRELL, J. - CONCURS




                                      12
