 

In the Missouri Court of Appeals
Eastern District

DIVISION FOUR
STATE OF MISSOURI, ) No. EDt02'/'52
)
Respondeiit, ) Appeal from the Circuit Court
) of Cape Girardeati County
vs. )
) Honorable Benjainin F. Lewis
KENNETH BELL, )
)
Appellaiit. ) FILED: May 3, 2016

introduction

Appellant Kenneth Bell ("Bell") appeals from the judgment of the trial court entered after
a jury convicted him on two counts of first-degree murder and one count of arined criminal
action. On appeal, Bell argues that the trial court clearly erred in denying a pretrial motion to
suppress Bell’s confession. Bell contends that the detectives violated Edwards v. Arizona‘ by
interrogating him after he told the detectives he was invoking his right to have legal counsel
present before speaking to them. Bell also argues that the trial court erred in allowing the State
to iiitroduce evidence that he possessed cocaine when Bell was arrested.

The evidence of Beli’s possession of cocaine \vas inadmissible because it constituted
uncharged bad acts. The evidence was not fogically or legally relevant for any other purpose.

I-Iowever, because there is no reasonable probability that thejury would have reached a different

1451 u.s.-ivv (1931).

conclusion but for the improper evidence, Bell suffered no outcome-determinative prejudice
Therefore, we cannot reverse the trial court’s judgment on this point.

However, because the detectives engaged in the functional equivalent of express
questioning under Rhode Island v. Innisz before Bell initiated any conversation with the
detectives, the detectives improperly subjected Bell to interrogation after he invoked his right to
counsel. Accordingly, the trial court should have suppressed Bell’s confession. Because we
cannot conclude that the admission of Bell’s confession was liarmless beyond a reasonable doubt
as to his conviction for inurdei' in the first degree, the trial court’s judgment is reversed and
reinanded. However, because the admission of Bell’s confession was liarmless error as to the
charges of murder in the second degree, this matter is remanded, and in accordance with Rule
30.22,3 the trial court is directed to allow the State to elect within sixty days from the issuance of
the mandate, to either retry Bell on all issues within the charges of niurder in the first degree and
arnied criminal action, or to accept the lesser convictions of inurdei' in the second degree and

armed criminal action.

Factual and Procedln'al History

I. Ullderlyillg Factllal History

Viewed in the light most favorable to the verdict, the following evidence was established
at trial:

Bell was charged with two counts of first-degree inurdei' and one count of armed criminal
action for the death of Slianlion J ames ("Jaines") and Ja\nes’s girlfriend, Misty Cole ("Cole").
Bell, James, and Cole lived in the same apartment building. On february 7, 2013, around ll:30

p.in., Bell and his brother were srnokirig cigarettes on a sidewalk behind Bell’s apartment

2 446 o.s. 291 (1930).
3 All rule references are to Mo. R. Crint. P. (2015).

Before trial, Bell objected to the introduction of two State’s exhibits State’s Exhil)it #23
was the cocaine seized from Bell after his arrest; State’s Exhibit #24 was the crime-lab report
about that cocaine. Bell argued that these exhibits contained evidence of uncharged crimes,
which was irrelevant and prejudicial. The trial court overruled Bell’s objection

The jury convicted Bell on all three counts. Aftel‘ denying Beil’s rnotion for new trial,
the trial court sentenced Bell to iife in prison without the possibility of parole. This appeal

fo|iows.

Points on Appeal

Bell raises two points on appeal. First, Bell argues that the trial court clearly erred by
denying his motion to suppress the confession. Specificaliy, Bell contends that Detectives Perry
and Estes obtained the confession during a custodial interrogation after Bell had already invoked
his right to counsel. Bell further asserts that he did not reinitiate further communications,
exchanges, or conversations with the detectives; thus, the detectives’ attempts to persuade Bell to
\vaive counsel were improper. Second, Bell argues that the trial court abused its discretion in
allovving the State to introduce evidence about the cocaine found in Beli’s pocket. Specif`\ca|ly,
Bell contends that any evidence of his possession of cocaine was an uncharged crime, was both
logically and iegai|y irrelevant, and was prejudicial to liim.

Discussion
I. Point One_Bell’s Confession

Bell clearly invoked his right to counsel during his first conversation with the detectives
Notwithstanding Bell’s request, Bell was not provided counsel. Twelve liours after Bell’s
request for counsel, the detectives removed Bell from his cell and brought him to an interview
rooin. Still, no counsel was present. The detectives read the arrest warrant and supporting

probable-cause statement to Bell. The detectives then continued to converse with Bell in an

ll

attempt to appeal to his conscience and persuade Bell into waiving his right to counsel. Neither
detective engaged in any express questioning of Bell during their interaction with him during this
extended conversation. However, the iiature and circumstances surrounding the detectives’
actions and statements were the functional equivalent of express questioning, and constituted
interrogation tinder the guidance announced in Rhode island v. lnnis, 446 U.S. 291, 30i (l 930).
The detectives’ interrogation of Bell after he expressly invoked his right to counsel impiicates
Bell’s constitutional rights as set forth in Ed\vards v. Arizoita, 451 U.S. 477, 484-85 (1981).

A. Standard of Review

We review a trial court’s decision on a motion to suppress evidence to determine whether
substantial evidence exists to support the trial court’s ruling. State v. Byrd, 389 S.W.3d 702, 707
(Mo. App. E.D, 2012). We will reverse the trial court’sjtldginertt only if it is clearly erroneous
1514 To find clear error, an appellate court must be "left with a definite and firm belief a mistake
has been made." State v. Haldiman, 106 S.W.3d 529, 533 (Mo. App. W.D. 2003). This Court
considers the record inade at the stippression hearing and at trial, and we "review all facts and
reasonable inferences therefrom in the light most favorable to the trial court’s decision." §yLd,
389 S.W.Bd at 707. We defer "to the trial court’s superior opportunity to determine the

credibility of witnesses." I_d. (quoting State v. Rousan, 961 S.W.Zd 831, 845 (Mo. banc 1998)).

B. Bell’s Right to Counsel

In Miranda v. Arizona, the United States Suprerne Court held that the no\.v-fantotls
Miranda warnings must occur before any custodial interrogatioii. 384 U.S. 436, 479 (1966).
Arnong those warnings is the right of an accused to the presence of an attorney. § Mirattda
unambiguously dictated the procedure to which law enforcement must adhere once an accused

invokes his or her right to an attorney: "the interrogation must cease tintil an attorney is present."

l_d. at 474.
12

Edwards v. Arizona reconfirrned l\/liranda’s protection of individuals in custody who
assert their right to counsel and provided persons accused of crimes with additional safeguards
451 U.S. 477, 485 (1981). The Edwards Court held: “[W]heli an accused has invoked his right
to have counsel present during custodial interrogation, a valid waiver of that right cannot be
established by showing only that he responded to further police-initiated custodial interrogation
even if he has been advised of his rights." ida at 484. After invoking the right to counsel,
authorities 1nay not subject a defendant to further interrogation tlntil either (l) counsel is present

or (2) "the accused himself initiates further communication, exchanges, or conversations with

the police." l_d, at 484~85 (ernpliasis added). As the Arkansas Suprenie Court articulately stated:

"lt is true that the accused person may change his mind and initiate further contact \vitli the
ofiicers, but the impetus must come from the accused, not from the officers." Metcalf v. State,
681 S.W.Zd 344, 345 (Ark. 1984) (emphasis added); see also, 2 LaFave, et al., Criminal

procedure § 6.9(£), 945 (4:11@¢1.2015).

 

The implicit assumption of Edwards "is that the subsequent requests for interrogation
pose a significantly greater risk of coercion." Marylaiid v. Shatzer, 559 U.S. 98, 105 (20l0).
The increased risk of coercion results from police persistence, but also from continued pressure
that begins when an individual enters custody and that is likely to "increase as custody is
prolonged." Li» (Quoting Minliick v. Mississipgi, 498 U.S. 146 (1990)). The fundamental
purpose of the Edwards rule is to preserve the integrity of the accused’s choice to communicate
with police only through counsel. Ld. at lO6. Edwards accomplishes this purpose by

“prevetit[itlg] police from badgerirrg a defendant into waiving his previously asserted Miraiida

rights." I_d. (quoting Michigan v. Harvey, 494 U.S. 344, 350 (1990)).

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Here, the trial court found-and neither Bell nor the State dispute~»tliat Bell
unequivocaliy invoked his right to counsel during his first coriversatiori with the detectives
Thus, the detectives constitutionally could not subject Bell to ftlrthet‘ interrogation while Bell
was still in custody unless (l) Beil’s counsel was present, or (2) Bell initiated further
connnunication, exchanges, or conversations with police sufficient to allow police to resume an
interrogation. The record is clear that the detectives resumed their conversations and questioning
of Bell before Bell was provided an attorney. Accordiiigly, the core of our analysis is whether
Bell initiated further communication with the detectives, and if SO, liad the detectives resumed
their interrogation of Bell before or after Bell initiated the comniuriicatioii.

The United States Supreine Court addressed the initiation issue in Oregon v. Bradshaw,
462 U.S. 1039 (1983). While a four-inember' plurality of the Sttpreme Court wrote the principal

opinion in Bradsliaw eight justices agreed on a two-step analysis to determine whether an

 

Edwards violation exists See i_d. at 1048 (Powell, J., concurring). The first step is whether the

defendant initiated a conversation. Ld. If so, the second step is whether-under the totality of
the circumstances~tlie defendant knowingly and intelligently waived the right to counsel. Ld.

The Justices split four-to~fotlrg in deciding parameters on what it means to "initiate” a
conversation. The plurality opinion used the "ordinary dictionary sense of [initiate]." I_d. at
1045. However, the plurality liinited this definition by the type of conversation that would
enable ftlrther interrogation:

'l`lrere are some inquires, such as a request for a drink of water or a request to use

a telephone, that are so routine that they cannot be fairly said to represent a desire

on the part of an accused to open up a more generalized discussion relating

directly or indirectly to the investigation Such inquiries or statements, by either

the accused or a police officer, relating to routine incidents of the custodial
relationship, will not generally “initiate" a coriversatioli in the sense in which that

9 Justice Powell, the iiintli Justice, thought the two-step analysis was novel and \vould lead to confusion; thus, Justice
Powell analyzed the issue entirely under the totality-of-the-circulnstances test. I_d. at 1050~51.

14

word was used in Edwards.

ld.

While the plurality opinion did not garner a )najority, Missouri courts have relied on the
plurality’s test. § State v. Lyons, 951 S.W.Zd 584, 590 (l\/lo. banc 1997); State v. Naliinowicz,
923 S.W.Zd 482, 486 (Mo. App. E.D. l996). Here, the trial court found that Bell initiated a
discussion under Bradsliaw with the detectives based on two inquiries. First, before the
detectives read Bell the arrest xvarrazit, Bell asked, "You talk to my wife, or my girlfriend?" As
the trial court noted, the detectives knew that Bell’s girlfriend was in Bell’s apartment at the time
of the shooting and was a potential \vitiiess in the case. Second, after the detectives finished
reading Bell the arrest warrant and probable~cause statement, Bell asked again, "You said you
talked to my wife and my girlfriend?" Bell then asked three follow up questions of the
detectives, including, "Did [girlfrieiid] tell rne anything? Icouldn’t talk to llel'." Citing
Bradsliaw, the trial court found that Bell’s inquiry about his wife and girlfriend could “f`airly be
said to represent a desire on his part to open up a more generalized discussion relating directly or
indirectly to the investigation." Thus, the trial court found that Bell’s inquiries initiated a
discussion, which allowed the detectives to begin their effort "to coax Bell to tafk." lt is unclear
from the trial court’s order ufln`clz of Bell’s inquiries the trial court found initiated a discussion
with the detectives under Bradshaw. Both of Bell’s questions related to his vvife and girlfriend
For purposes of our analysis, we will assume that the trial court found that both statements
evinced Bell’s willingness to have a general discussion about the investigation, and thus both of

Bell’s statements initiated a discussion. We will address each of Bell’s inquiries in turn.

C. Bell’s First lnguiry about His Girlfriend

Even if Bell’s first inquiry about his wife and girlfriend_"You talk to my wife, or my

girlfriend?"_caii be deemed stifticieiit to evince a willingness by Bell, directly or indirectly, to

15

have a general discussion about the investigation, the record is clear that Bell did not initiate this
discussion. To the contrary, police initiated the discussion about both Bell’s wife and girlfriend
The record shows that a fevv hours before the detectives’ second conversation vvitli Bell,
Commander Meadows told Bell that Bell’s wife had called the station a few times. Then, just
before Bell mentioned his wife or girlfriend during the second conversation, Det. Perry told Bell,
"Just talked to your girlfriend." Beil interrupted Det. Perry a few sentences later: "You talk to
my wife, or my girlfriend?" We are not persuaded that Bel|’s clarifying response to Det. Perry’s
comment initiated a general discussion about the investigation within the ordinary dictionary
sense of the word. _S_e_e_ Bradsliavv, 462 U.S. at 1045. Stated differently, the impetus to discuss
Bell’s girlfriend originated with Det. Perry, not Bell. § Mllf, 681 S.W.Zd at 345.
Tlierefore, Bell’s first inquiry about his \vif`e and girlfriend did not meet the requirements for
initiating a conversation under the plurality opinion in Bradshaw.

D. Bell’s Second Inguir_v about His Girlfriend

The State also contends that Bell waived his Miraiida rights by initiating a discussion
with the detectives during the second conversation when Bell inquired about his girlfriend a
second time. After Bell asked for water and Det. Estes left the room to retrieve it, this exchange

occurred between Bell and Det. Perry:

BELL: You said you talked to my wife and my girlfriend?

PERRY: Uh, 1 didn’t talk to her but other officers did.

BELL: Okay.

PERRY: Uh, they talked to your wife early on this inorniiig because I know
she shovved up at the location that the  at 401 South Pacific and
that was early, early, early,

BELL: Okay.

PERRY: Or late, late however you want to look at it uh when l first  l
went there before l caine here this morning.

BELL: Okay.

PERRY: And you were already in custody, so.

BELL: And my girlfriend?

PERRY: Uh she just left ltere.

16

BELL: She say anything? Did she say tell me anything?

PERRY: Huh?
BELL: Did she tell me anything? l couldn’t talk to her.
PERRY: No. She didn’t say tell you anything; l’ll tell ya that. But
obviously, l’m not going to tell you everything I, I kno\v. Ol<ay?
BELL: Right.
1. ’I`rial Court’s Fimling that Bell Initiated a Sllbseqllelit Discussion is
Reasollal)le

The contention that this exchange constitutes the required initiation of a discussion under
Bradsliaiv is strong for two reasons. First, tlnlike Bell’s first inquiry, here Bell broached the
topic of girlfriend without any prompting from the detectives. Thus, the trial court reasonably
could conclude that Bell initiated a conversation in the ordinary dictionary sense of the word
"initiate." § Bradshaw, 462 U.S. at 1045. Second, the record is clear that with this second
inquiry, Bell asked ivhat his girlfriend iniglit have said. Viewed in a light most favorable to the
trial collt't`s ruling, Bell reasonably could be seen as inquiring about the State’s evidence against
him because he sought information that his girlfriend, a potential witness, might have given the
police. Thus, the trial court’s tinding»-»tliat Bell’s second inquiry about his girlfriend evinced a
willingness, at least indirectly, to have a general discussion about the investigation-was
plausible § Bradsliaw, 462 U.S. at 1045.

2. Bell’s Second Inquiry Occuri'ed After Police Iilitiateti the
Interrogatioll

However, even accepting the trial court’s finding that Bell’s inquiry regarding his
girlfriend initiated the subsequent interrogation with the detective, the record before us shows
that the detectives had already begun their interrogation of Bell before Bell’s second inquiry
about his girlfriend. Under the clear mandate of Edwards, police can only begin an interrogation

after the defendant initiates such a discussion. 45¥ U.S. at 484-85.

17

ln a Miraiida analysis, an interrogation refers notjust to express questioning of an
accused. An interrogation also includes the "functional equivalent" of express questioning,
rneaning “any words or actions on the part of police (otlier' than those normally attendant to arrest
and custody) that the police should know are reasonably likely to elicit an incriminating response
from the suspect.” Rhode island v. Innis, 446 U.S. 291, 301 (1930). An irrcriniiiiatiiig response
is any response-whether inculpatory or exculpatory-that the prosecution may seek to
introduce at trial. § at 301 n.5. The primary focus of this analysis is upon the perceptions of
the suspect, not the intent of police; but at the same tirne, we do not hold police accountable for
the lmforeseeable results of their words or actions. l_d_._ at 301-()2.

The State relies lteavily on United States v. Allen, 247 F.3d 741 (Sth Cir. 2001), cert.
granred, judgment vacated on other grozznds, 536 U.S. 953 (2002), for the proposition that the
detectives’ reading of the arrest warrant and probabie-catlse statement was simply the
presentation of a statement of facts that was not reasonably likely to elicit an incriminating
response from Bell. ln §§ the defendant invoked his right to counsel around 3:00 a.tn., and
police immediately ended the interrogation § at 764. The next morning, an officer asked
Allen if he still wanted participate in a lineup given his request for counsel, and Allen agreed to
participate without counsei. § After the lineup, police informed Allen of the results of the
lineup: three of the four witnesses had placed him at the scene of the crime. § Allen then asked
to speak with a detective and subsequently confessed. § On appeal, Allen argued that his
confession should have been suppressed because he had invoked his right to counsel and that
telling him of the results of the lineup was the functional equivalent of interrogation under ln_r_i_is.
§ at 765. The Eightli Circuit held that l§ni_s did not require the confession to be suppressed

because the detective’s statement about the lineup was not reasonabiy likely to elicit an

18

incriminating response. § Instead, the Eightli Circuit cliaracterized the officer’s statement as
"a statement of fact and not a plea to conscienee." § (Emphasis added.) "Informing a suspect
that he has been identified in a lineup contributes to the intelligent exercise of his judgment and
may likely make firm his resolve to refuse to talk to the police vvitliollt counsel.” l_d. Moreover,
keeping a suspect informed should be encouraged rather than diseouraged, "so long as the
communication is truthful, and is not designed, nor is it likely to elicit, an incriminating
response." I_d. at 765-66. On those facts, the Eighth Circuit found that no police interrogation
occurred. I_cL at 766.
We find the facts of All_e_n distinguishable from the facts before us, and conclude that

All@ actually supports Bell’s argument Here, contrary to the facts in A_ll_en, the detectives made
repeated pleas to Bell’s conscience, and did not limit their cornmurricatioii to the recitation of
facts that \vould keep Bell informed of the progress of the investigation. §_e_e igl,¢ at 765. The
detectives retrieved Bell from his cell and placed hint in an interview room. Even if we were to
hold that reading the arrest warrant and the probable-cause statement in an interview room was

ll)

conduct "nornialiy attendant to arrest and custody," and thus was not interrogation under lnnis,

446 U.S. at 301, the record shows that the detectives went far beyond simply reading facts \vheii
resuming their communication with Bell.

Af`ter reading the warrant, Det. Perry said, "Man, you’re a calm dude to sit there after
hearing that." Det. Perry then stated, "l tried to express to you earlier about having the

opportunity to put your side out \vhen we’ve been working with the l\/Iajor Case Sqtiad all day."

'° The trial court found that officers were required to read the warrant to Bell per department policy and Section
544.130. After a plain reading of Section 544.}80, we are not convinced that the statute requires police to remove a
defendant-\vho has invoked his right to counsel numerous tilnes_frotit his cell, bring the defendant to an intervie\v
room, and spend more than 10 niinutes (per the tiniestaitip on the vicleo) reading the evidence of the crime. Ftlrther,
Det. Peiry admitted that anyone could have read Bell the \varrant, but Det. Perry said he \.vanted to read the warrant
personalty because "if [Bell] did want to talk, 1 did want to be preserrt.“ Det. Perry also admitted that iiothing
required him to read the probable-cause statenierit, but that he chose to do so on his own. Not coincidentally, the
probable-cause statenient outlined much of the State’s evidence.

19

After reading the probable-cause statement that detailed all of the facts of the crime and with no
response from Beil, Det. Periy told Bell that the media would soon have all the facts. Det. Perry
said, "So everybody in the City of Cape will have [tlie probable-cause statement] by tonight
because I’ve already given that to our public relations officers  So, 1 wanted to make sure that
you tinderstood that there’s a lot of information and evidence that points to you and probable
cause to get a warrant." Det. Perry continued, "l’ve been doing this for over twenty~ftve years
and that’s the largest bond amount I’ve ever seen on a case that i’ve been involved in." Clearly
trying to avoid an Edwards violation, Det. Perry said, “l’m not going to ask you if you want to, l
will tell you if you would like to give any information, and if you ask me  you would like to
talk to me, you would like to give your version or account of what transpired over there; all you
have to do is ask me." Det. Perry also carefully stated, "I’m not going to ask you any questions,
but I’m gonna tell you this is a mild piece of the information that we do have, ol<ay?"
Importaiit to our analysis and holding, each of the detectives’ statements occurred before

Bell asked about his girlfriend the second time. The State’s argument that the detectives nrerely
provided Bell with facts of the type found permissible in m is unavailing because the
detectives clearly \vent beyond cnerely stating facts, but made rtunterotis pleas to Bell’s

consciencel l

in a deliberate atternpt to coax Bell into waiving his right to counsel. The
detectives should have known (and they most certainly did know) that these statements were
reasonably likely to provoke Bell into a response, to waive his right to counsel, and to produce a
statement that the prosecution could use at trial. § g, 446 U.S. at 3()1. The Cletectives’
iiuinerotls appeals to Bell’s Conscience, made in an interrogation room and after detailing the
evidence against Bell, were the functional equivalent of express questioning We hold the

detectives’ statements constituted an interrogation of Bell under lnnis.

“ Or, as Det. Perry put it in his testimony, “logical reasons of why we would like to have his statenient."

20

 

building. Jatnes and his friend Argecttry Marshall ("Marsltall") vvaiked on the sidewalk to\vards
Bell, As James and Marshali approached, Bell and his brother remained standing in the middle
of the sidewalk. Marshall decided to \valk around, but james stayed on the sidewalk and bumped
into Bell. After a brief verbal altercation, Bell went into his apartment, \vhiclt had an exterior
door in the back of the apartment building Bell’s girlfriend, who was sitting at the kitchen table,
asked Bell \vhat was going on. Without replying to his girlfriend, Bell retrieved a gun from his
kitchen and walked through his apartment’s front door and into a shared foyer area in the
apartment building.

Meanwllile, james and Marshall had been walking to\vard the front door of the apartment
building, which opened into the shared foyer area. As james opened the front door, Marsiiall
saw Bell through a window. Bell was standing in the foyer area brandishing a gun. Marshall
decided against going inside because of Bell’s gun, but James decided to go inside. Marshall
\vatclied james walk through the small foyer and to the front door of his apartment. Cole opened
the door for james from inside of their apartment. Marsliall testified that he saw the door to
James’s apartment open, but that he immediately turned and walked away. As Marshall started
to walk away, he testified that he heard three to four gunshots, then a slight pause, and then a
couple more. Marsliall called 911 as he ran away. After officers had arrived on the scene, an
officer saw the silhouette of a person in a nearby alleyway. After a short pursuit, police
apprehended the silhouetted person, who was identified as Beil. Police conducted a pat-dovm
search of Bell at the poiice station and found cocaine in his rear pants pocket. Bell also tested
positive for gunshot residue.

As police assessed the scene, officers found Cole’s dead body in the doorway of her

shared apartment with James. Officers found James’s dead body inside the apartment. Both

The State also suggests State v. Myers allows some continued communication with an
accused \vho has invoked the right to counsel. 291 S.W.3d 292 (Mo. App. S.D. 2009). The
distinct and particular facts of M_y_t;r;s preclude this opinion from offering any guidance in the
matter before us. ln @, two officers were interrogating l‘vlyers when he invoked his right to
counsel. § at 296. lnstead of immediately leaving the room, one officer made several
comments including telling l\/lyers this would be his last chance to talk and asking Myers
whether what occurred was self-defense. § at 296-97. The videotape showed that Myers
recognized the officers were leaving. _l__t_L at 297. Afier it was clear that the officers were going
to allow Myers to assert the right to counsel, Myers raised his hands as a gesture to the officers to
stop leaving the room. Ld. Myers said he was ready to talk and subsequently waived his right to
counsel. I_d. The Southern District held substantial evidence supported the trial court’s finding
that Myers reinitiated the conversation. ld_. at 297. The Soutliern District relied heavily on the
trial court’s detailed findings that (l) even with the officers’ continued comments, the officers
respected Myers’s rights and began to leave the room within one minute after the accused asked
for legal counsel, and that (2) only after it was “very obvious" to l\/lyers that the officers were
leaving, were ending the interrogation, and were going to allow Myers to assert his right to
counsel did Myers then initiate the discussion with the detectives. l;d. at 296-97. The facts in
Mj@ demonstrate that the impetus to reinitiate the conversation_aftel' it was clear to Myers
that the interrogation was ending~was on l\/lyers when he raised his hands, stopped the officers
from leaving, and said he was going to talk. gmi 681 S.W.Zd at 345. Conversely, it was
not obvious at all that the detectives here were ending their interrogation and respecting Bell’s
rights. Bell asked about his girlfriend rlz.rring an ongoing interrogation, not prior to the

detectives’ resumed interrogation. The circumstances of the continued contact between the

21

detectives and Bell violated Edwards’s prohibition against law enforcetnetit’s subsequent
interrogation of an accused absent counsel unless the accused initiates further conversation. 451
U.S. at 484-85.

The underlying rationale of Edwards further supports our conclusion that the detectives
violated Bell’s rights. Preveiiting badgeririg police conduct is precisely the rationale for the
Edwards ruie. Sil, 559 U.S. at l06; Nauinowicz, 923 S.W.Zd at 486 (in affirming the
trial court’s denial of the defendant’s motion to suppress, we found it significant that the case
presented "no evidence of police badgerittg, \vhich was the prime concern of Edwards"
(Einpiiasis added.)). Here, Bell was badgered after he invoked his right to counsel. During the
first conversation with the detectives, Bell asserted his right to counsel several times over a
thitty-tive~inintlte conversation before the detectives finally respected Bell’s decision. Later the
next inorniiig, Cpl. Bonham continued liis attempts to persaude Bell to talk by telling Bell how
the jury might perceive the incident, that this was a ruthless killing, that Beii had some problems,
and that the jury would have no rnercy if it did not know \vhat happened. A few hours later, Det.
Perry and Det. Estes took Bell into another interview room, where they outlined the evidence and
made inultiple appeals to Bell’s conscience as stated above. Bell finally agreed to talk only after
an hour into that second conversation. This type of badgering conduct occurred after Bell
requested counsel, but before counsel was provided. Whiie we respect the need of law
enforcement to investigate crimes and secure confessions, the Constitution requires law
enforcement to respect the rights of accused persons in custody who request legal counsel,

In conclusion, it is undisputed that Bell invoked his right to counsel during his first
conversation with the detectives The detectives’ ongoing statements made during their second

conversation with Bell were the functional equivalent of express questioning, and they

22

constituted interrogation under ln@. Because police aiready had resumed their interrogation
when Bell asked about his girlfriend the second time, Bell did not "initiate” the conversation
with the detectives under Edwards. Instead, the detectives improperly interrogated Bel| after his
request for counsel, and this improper interrogation led to Bell’s confession. The detectives’
violation of Edwards v. Arizona required the suppression of Bell’s confession. The trial court’s
judgment allowing the confession into evidence was clearly erroneous.

E. Harmless Error'

Having determined that the trial court erred in admitting Beil’s confession, we must
determine whether that error was liarmless. State v. Samuels, 965 S.W.Zd 913, 920 (Mo. App.
W.D. 1998). "[B]efore a federal constitutional error can be held harmless, the court must be able
to declare a belief that it was harmless beyond a reasonable doubt.” State v. Whitfield, 107
S.W.3d 253, 262 (Mo. banc 2003) (stlperseded on other grounds by State v. McLatlghlin, 265
S.W.$d 257, 262 (Mo. banc 2008)) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
The application of liarmless error is based on a continuum that is not subject to absolutes. State
v. Ramirez, 447 S.W.Sd 792, 798 (Mo. App. W.D. 20¥4).

In fashioning a harmless-constitutional-error rule, we must recognize that

harmless-error rules can work very tmfaii' and mischievous results when, for

exampie, highiy important and persuasive evidence, or argument, though legally

forbidden, finds its way into a trial in which the question of guilt or innocence is a

close one. What liarmless-erroi' rules all aim at is a ruie that will save the good in

harmless-error practices while avoiding the bad, as far as possibie.

Cliapinan, 386 US. at 22-23.

An underlying purpose of the liarmless~errox‘ rule is to safeguard an otherwise valid
conviction when the reviewing court can confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt. This doctrine "recognizes the

principle that the central purpose of a criminal trial is to decide the factual question of the

23

defendant's guilt or innocence and promotes public respect for the criminal process by focusing
on the underlying fairness of the trial rather than on the virtually inevitable presence of
immaterial error." Delaware v. Vati Arsdall, 475 U.S. 673, 681 (1986) (iriternal citation
omitted). We consider and quantitatively assess these trial errors in the context of the other
evidence presented at trial to determine if the error is harmless beyond a reasonable doubt.

Bell was charged with first-degree inurdet‘ for killing both james and Cole. However, the
trial court also instructed the jury on the lesser-included charge of second-degree lnurdei‘ for both
victims. To find Bell guilty of second-degree rnurdei' under the instructions submitted by the
trial court, the jury had to find (l) that Bell caused the death of the victims, and (2) that Bell
knew his conduct was practically certain to cause the death of the victims. §_e_e Seegtion
565.021.1(1). To find Bell guilty of first-degree murder, the jury had to find the elements of
second-degree inurder and additionally that Bell engaged in the conduct after deliberation, vvhich
"ineans cool reflection for any length of time no inatter how brief." §e_e Section 565.020.1;
Section 565.002(3).

Overwllelniiiig evidence, untainted by Bell’s confession, leads us to conclude that the
admission of Bell’s confession at trial was liarmless error insofar as it applied to second-degree
inurder. Two witnesses saw Bell and James hump into each other shortly before the inurders.
One witness, Marshall, saw Bell brandishing a gun inside the foyer of the apartment building
seconds before the murders. Marsliall saw James walk past Bell \vhile Bell was holdiiig a gun,
and Marshall heard gunshotsjtlst moments later as he was walking away from the apartment
building. Shortly after the inurders, police saw Bell near the scene and apprehended him after a
pursuit. The physical evidence also overwhelmingly pointed to Bell as the shooter. Officers

found Cole’s body in the doorway leading into her shared apartment with .lames; officers found

24

James’s body inside the apartment Ntinierous spent bullets and bullet casings were found
around the bodies and the foyer; the spent casings were the R & P Luger 9mm brand. Officers
found both live aminunitioii and spent casings of that same brand in Bell’s apartment. Officers
found a gun on the roof of the building irext-door. The gun found by the officers fit inside a
holster found in Bell’s apartment All bullets inside that gun’s inagazine vvere the R & P Luger
9mm brand found at the scene of the lnurders and in Bel|’s apartinerit. A criminalist testified that
the spent shell casings inside the victims’ apartment were fired from the discovered gun, and that
the bullets were consistent with being fired front that gun. DNA found on the gun rnatched
Bell’s DNA. Beli also tested positive for gunshot residue at the police station shortly after his
arrest. No evidence suggested the possibility of another shooter.

To be sure, the evidence recited above is circumstantial in that there was no witness who
saw the actual shooting. But such evidence overwhelmingly supports a conviction of inurdei‘ in
the second degree, even absent Bell’s confession, and circumstantial evidence may properly
support a conviction, See, e.g,, State v. Baker, 859 S.W.Zd 805, 813 (Mo.App. E.D. 1993) (“All
of the elements of a honticide case including the corpus delicti may be proved with
circumstantial evidence."); State v. Hutcltison, 957 S.W.Zd 757, 767 (Mo. banc 1997)
("Circtlinstantial evidence is afforded the same weight as direct evidence.").

Cliapniaii rejects the prospect of automatic reversal upon a finding of constitutional error
and directs a liarmless-erroi' standard that weighs the relative harm of improperiy admitted
evidence to the presence of other evidence of guilt. Rainirez, 447 S.W.3d at 793. While
acknowledging the impact that Bell’s confession may have on a jury, we remain convinced that
the suppression of Bell’s confession would have had no impact on the jury’s decision to find the

facts necessary to support a conviction of murder in the second degree. Accordirigly, we

25

conclude that admitting Bell’s confession was liarmiess error beyond a reasonable doubt with
respect to second-degree niurder.

While we are firm in our holding that the trial court’s failure to suppress Bell’s
confession was harmless error as to the the charge of inurder in the second degree, we are not so
persuaded when considering the potential impact of the confession on the charge of inurder in
the first degree. We find ourselves in a similar situation to the court in Sarnuels, 965 S.W.Zd at
922, because we are unwilling to conclude that admitting Bell’s confession was liarmless beyond
a reasonable doubt with respect to the additional ele:nent_deliberation_required for first-
degree lnurder. We acknowledge that, from the evidence in the record, thejury could have
inferred that Bell murdered the victims \vitli deliberation even without lieariiig evidence of his
confession. §§e__t;.g, Samuels, 965 S.W.Zd at 922 (inference of deliberation from inultiple
gunshot wounds); State v. Hovvard, 896 S.W.Zd 471, 481 (Mo. App. S.D. 1995) (inferelice of
deliberation when the defendant left scene immediately after the shooting without checking on
the victim or procuring aid). However, Bell’s confession provided Substaiitial evidence of
deliberation that no other evidence could provide. Over the course of 34 pages of transcript, Bell
walked the detectives through the shootings.

l\/lany of Bel|’s admissions \vere particularly probative of deliberation. For example,
rather than only shooting Cole and .lames from the foyer, Bell admitted seeing Cole go down in
the doorway and then shooting her one more time while she was on the ground. Bell also
admitted that James was already shot and down on the floor inside the apartment, but that Bell
walked around Cole’s body and shot James "a couple more times." Bell’s statements strongly
indicated that Bell murdered Cole and james with deliberation after cool retiection. Whiie the

jury might have inferred the required deliberation from the evidence rninus Bell’s confession, we

26

are unable and unwilling to hypothesize the full impact of Beil’s highly probative stateinents on
the jury’s finding of required element of deliberation. § Samuels, 965 S.W.Zd at 923.
'I`lierefore, we cannot conclude that the admission of Bell’s confession was harmless beyond a

reasonable doubt with respect to the deliberation element of first-degree inurder.

F. Remedy

Having determined that admitting Bell’s confession was liarmless beyond a reasonable
doubt with respect to second-degree rnurder, but not with respect to the deliberation element
required to convict Bell of first-degree niurder, we must determine the appropriate rernedy upon
remanci. Given the same question, the Samuels Court entered an order reversing the trial court’s
judginelit and reniandieig the case for a new trial. 965 S.W.Zd at 923. Whiie this course of
action provides one proper remedy, we are not so lirnited in addressing the particular
circumstances presented by the facts of this case.

In State v. Roe, this Court was presented with an analogous factual context. 6 S.W.3d
411 (Mo. App. E.D. 1999). in _Rmoue,, we held that the trial court committed plain error by
submitting a defective verdict director for first-degree rnurder. l_ci. at 416. The verdict director
erroneously allowed the jury to convict the defendant of first-degree murder oniy by finding the
requisite intent for second-degree inurder. §§ at 415. We recognized that the trial court’s error
required reversal of defendant’s convictions for first-degree niurdei' and armed criminal action.
I_cL at 4l6. Hovvever, we also noted that the jury had found each of the prerequisite elements for
second-degree inurdet‘ despite using the defective verdict director. ida at 417. We acknowledged
that the traditional reniedy was simply remanding the matter for a new triai, but believed that
policy considerations justified an alternative remedy. g We noted, "It is fundamental that the

appellate reinedy should extend no further than the scope of the wrong." ld.

27

We reasoned that the defectivejtiry instruction contained all of the requisite elements of
second-degree inurder. § Further, because the jury vvas instructed in both second-degree
\nurder and armed criminal action, the defendant had full notice and a complete opportunity to
defend against the lesser-included charges. § Finally, the defendant was a prior offender,
which made sentencing a question for the judge rather than thejury. § Thus, the erroneous
instruction did not foreclose any expectation of the defendant tiiat the jury would assess his
sentence. § Given the policy considerations, we found that reniand for a new trial would
exceed the scope of the wrong and would represent a windfall to the defendant, who received a
"perfectly fair trial as to second-degree inurder and armed criminal action." § at 417-18. As a
reinedy, we remanded the case and allowed the State to elect, within sixty days from the issuance
of our inandate, whether to retry the defendant on all charges or to accept the lesser convictions
for second-degree inurder and armed criminal action. § at 418.

The Western District has cited § in rejecting the traditional remedy of a remand for
new trial. State v. Neal, 328 S.W.3d 374 (Mo. App. W.D. 2010). In Megl, the trial court erred
by submitting the second-degree robbery instruction on a charge of first-degree robbery. § at
383. Thus, the instructions allowed the jury to convict on first-degree robbery while requiring
thejury to find only the elernents of second-degree robbery. § Following the rationale of §,
the Court found that the remedy of a new trial exceeded the wrong of the improper instruction
and that the defendant received a fair trial on second-degree robbery. § at 384. Unlike §, the
§ Court found that because the State erred in providing the trial court with tile improper
instruction, the State should not be provided the windfall of the option to retry the defendant on
first-degree robbery. § at 385. The Western District noted, "Tlie parties, the victims, thejurors

and the citizens of the State have an interest in having cases fully and finally decided. Neither

28

judicial economy nor the rights of the parties would be served by granting either party a new trial
in this rnatter." l_cL Therefore, the Court reversed the defendant’s conviction of first-degree
robbery, and the Court rentanded vvith instructions to enter a judgment of conviction for second-
degree robbery and to resentence the defendant accordingly §

We find the remedy that _I_{_o_;c_ crafted to be appropriate and just ltere. Our traditional
remedy in this situation would be to reverse each of Bell’s convictions and to remand for a new
trial. §§__e Samuels, 965 S.W.Zd at 923. However, we reiterate that it is fundamentaf for the
appellate remedy to extend no further than the scope of the wrong. L, 6 S.W.Sd at 417. The
wrong here was admitting Bell’s confession, which ims riot harmless \vitli respect to thejttry’s
conviction on first-degree inurder but ims harmless with respect to second-degree intn'der.
Because we found Bell’s confession to be liarmless with respect to the lesser-included second-
degree rnurder, such a lesser-included conviction was constitutionally perrnissible. Thus,
depriving the State of a conviction based on second-degree inurder exceeds the scope of the
wrong because only a conviction for first-degree inurder' was impermissible 6 S.W.3d at 417.
The other policy considerations identified in gone also support our remedy. Because second-
degree lnurder' is a lesser-included offense to first-degree rnurder, thejury found each element of
second-degree murder beyond a reasonable doubt. l_d. Because the trial court instructed the jury
here on second-degree inurdei' for the deaths of james and Cole, Bell had the opportunity to
defend himself against those charges. I_d. Further, the trial court found Bell to be a prior felony
offender, so Bell’s confession did not alter any expectation he might have had in the jury
assessing his sentence. §

Given the circumstances of this case, we find the remedy applied by this Court in § to

be particularly appropriate. Accordingly, we reverse Bell’s convictions of first-degree inurder

29

for the deaths of both victims and his conviction of armed criminal action for the death of Cole.
We remand the case with directions to the trial court under Rule 30.22. The trial court is directed
to allow the State to elect, within sixty days of our lnandate, either (l) the traditional remedy of a
retrial on all counts, including first-degree inurder, or (2) to accept the lesser convictions for
second-degree murder for the killing of both victims, and armed criminal action in connection
with second-degree murder for the death of Cole. If the State elects to accept the lesser
convictions, the trial court is directed to enterjildgineiit and resentence Bell accordingly.

II. Point Two-Uncllargecl Bad Acts

We note at the outset that this point is moot if the State elects to retry Bell, as Bell will
have received the new trial that he desires. Hovvever, we must review Point Two because it is a
live issue if the State elects to accept the lesser charges of second-degree murder and armed

criminal action.

A. Standard of Revie\v

The trial court has broad discretion in determining the admissibility of evidence, and we
will not disturb its ruling absent a clear abuse of that discretion. State v. .Iohnson, 207 S.W.3d
24, 42 (Mo. banc 2006). The trial court abuses its discretion when a ruling is "clearly against the
logic of the circumstances then before the court, and is so arbitrary and unreasonable that it
shocks the sense of justice and indicates a lack of careful, deliberate corisideratioli.” §gt@
Roggenbuck, 387 S.W.3d 376, 382 (Mo. banc 2012).

However, finding that "the trial court erred in admitting evidence does not end the
inquiry." State v. Barrilier, 34 S.W.3d 139, 149 (Mo. banc 2000). We only reverse if we
determine the improper admission was outcome-determinative. I_d. at l50. A finding of
outcome-determinative prejudice "expresses a judicial conclusion that the erroneously admitted

evidence so influenced the jury that, when considered with and balanced against all of the

30

Cole and James suffered fatal gunshot wounds. Officers found six spent bullet casings and 1 1
spent bullets iiearby, ali of which were the same brand (R & P Luger91nn1). Police also searched
Bell’s apartment and found an assortment of live and spent bullets and shelf casings, and an
empty gun holster, A semi-autoinatic gun was found on the roof of a house next~dool' to the
apartment coinplex. The gun fit inside the empty holster found in Bell’s apartment, and DNA
taken from the gun rnatclxed Bell’s DNA. All of the bullets inside the gun were the same R & P
Luger 9mm rounds found near the victims. A criminalist testified at trial that all eighteen spent
bullet casings were fired from the gun. The crimina|ist was unable to say with scientific
certainty, but the physical evidence was consistent with the gun having fired the spent bzrllets.
An autopsy confirmed that the victims died of gunshot wounds. Jaines was shot several times
and died of a gunshot wound to the liead; Cole was shot six or seven times, with several of the
wounds possibly fatal.

II. Bell’s Time in Custody and his Confession

Several parts of Bell’s time in custody are relevant to this case. Detectives Don Perry
(“Det. Perry") and Darreii Estes ("Det. Estes") conducted two separate conversations with Bell.
The first conversation occurred at 2:52 a.m. on February 8, 20l3-just liours after the shootings.
The second conversation occurred that afternoon, at 3:47' p.m. on Febrtlary 8, 20¥ 3.

A. First Conversation

At 2152 a.m. on Febrtlary 8, 2013, Det. Perry and Det. Estes took Bell to an interview
room. The detectives informed Bell that he was under investigation for the inurders and read
Bell his Mirandad rights. This exchange occurred:

PERRY: Do you understand each of the rights l have just explained to you?
BELL: Yes.

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

evidence properly admitted, there is a reasonable probability that the jury would have reached a
different conclusion but for the erroneously admitted evidencc." Li- (f?}lloting State v. Roberts,
948 S.W.Zd 577, 592 (Mo. banc 1997)). in determining whether outcome-determinative
prejudice exists, we consider several factors: the overwhelming xiature of the properly admitted
evidence, the similarity of the charged offenses to the improperly admitted evidence, the aniouiit
of improperly admitted evidence, the extent the prosecution relied on or highlighted the
improperly admitted evidence, and the prosecutions interitioii-~»wiietlier' deliberate or

inadvertent--iii eliciting the improper evidence. gl_. at 150-151.

B. Uncharged Bad Act

Bell argues that the trial court abused its discretion in admitting evidence that police
found Bell in possession cocaine after he was arrested. Bell asserts that such evidence was
irrelevant to the issue of whether he inurdered the victims and was thus inadmissible as an
uncharged bad act. We agree, but we also conclude that the admission of the uncharged bad act
did not result in outcome-deterlriinative prejudice to Beil.

Generally, evidence of prior tlncharged crimes and prior bad acts is inadmissible to show
the defendant’s propensity to co)nmit such crimes State v. Bernard, 849 S.W.Qd l(), 13 (Mo.
banc 1993). Despite this general rule, prior lniscondtict that is both logically and legally relevant
is admissible Barriner, 34 S.W.3d at 144. "E`,viderice is logically relevant if it has some
legitimate tendency to establish directly the accused’s guilt of the charges for which he is on
trial. Evidence is legally relevant if its probative value outweighs its prejudicial effect.” Ld. at
144-45 (internal citation ornitted).

Several exceptions exist under which otherwise inadmissible evidence may be relevant
for a different purpose State v. Prinini, 347 S.W.3d 66, 70 (Mo. banc 201]). Such evidence

may be admissible if it tends to establish motive, intent, the absence of niistake or accident, a

3l

conimon scheme or plan embracing the commission of two or more crimes so reiated to each
other that proof of one tends to establish the other, or the identity of the person charged with
commission of the crime on trial. l_cL Additionally, evidence of tincharged crimes that is part of
the circumstances or the sequence of events surrounding the offense charged may be admissible
"to present a complete and coherent picture of the events that transpired." l_d:

in State v. Burzif`tii, 77l S.W.Zd 908, 910 (Mo. App. W.D. 1989), the defendant was
convicted of second-degree inurder and arnied criminal action. ida During trial, the State
elicited evidence that tile defendant was smoking inarijtlaila with his companions when the crime
occurred id at 91 l. The State also conimented on this evidence during opening statements and
closing argument. l_d. On appeal, Buriifin argued that evidence of him smoking inarijuaiia was
improper because it constituted evidence of tlncharged crimes. § at 9l0. The Western District
held, “the fact that Buriifiii had been smoking inarijtlana the night in question had no bearing
whatever on any of the facts in issue and had no tendency to prove Burnfin guilty of liomicide."
I_cL at 911. The Court concluded that the sole purpose for the evidence "was to portray Burnfiii
as a dope user and to thereby prejudice his cause before the jury." LcL Thns, admission of this
evidence was improper. l_d.

Foilowiiig the rationale in Blfin, the fact that officers found cocaine in Bell’s pocket
had no bearing whatsoever on any of the facts at issue and had no tendency to prove that Bell
inurdered james and Coie. Beii’s possession of cocaine was neither logically nor legally
relevant to \vhetlzei' Bell committed inurder.

Ftirtlier, the contention that Bell’s cocaine possession was direct evidence of potential
motive, intent, and identity is untenable The State notes that defense counsel cliaracterized

James as angry when he bumped into Bell because of a prior "drug deal gone bad that day," and

32

subsequently elicited evidence that someone had stolen drugs from James. Further, defense
counsel elicited testiinony that investigators found individual packets of niarijtiaiia and cocaine
on James’s dead body. The State’s implication is that Bell’s possession of cocaine had some
relevance to the already~admitted evidence of James selling or using drugs, which might have
lent some probative value to Bell’s motive or intent to tnurdei' James. But this argument fails
absent any evidence connecting Bell’s possession of drugs to .lames. For example, Bell’s
cocaine possession might liave some relevance to Bell’s inotive, intent, or identity if evidence
suggested that Bell had bought or stolen drugs from james in the alleged "drug deal gone bad.’°
However, the State explicitly rejected any such connection in closing argument by stating that
Jaines and Bell were “[t]wo virtual strangers on the street" when they bumped into each other.
Because we discern no relevance between Bell’s possession of cocaine and his alleged murder of
James, the trial court abused its discretion in admitting that evidence.

Despite the trial court’s abuse of discretion, we conclude that the error was not outcome-
determinative. For the reasons stated in our "Harinless Error" section above, the jury had
overwhelming evidence to convict Beil of second-degree inurdei' and armed criminal action,
even excluding evidence of his cocaine possession. Bell’s cocaine possession did not relate
directly to rnurder, so it is tinlikely that thejury attached significant probative value to the
improperly admitted cocaine evidence. § Barriner, 34 S.W.Bd at 150. Additionally, the State
offered only two exhibits reflecting Bell’s cocaine possession and did not refer to the evidence
during closing arguments I_d. at 151. Wliile we recognize that the State deliberately elicited the
cocaine evidence, the State did not highlight the evidence in its presentation to thejury. Ld.

Because the State presented overwhelming evidence of Bell’s guilt as to second-degree

inurder, and because the evidence of Bell’s cocaine possession played a niininiai role in the trial,

33

we conclude that there is no "reasoriable probability that the jury would have reached a different
conclusion but for the erroneously admitted evidence." Barrilier, 34 S.W.3d at 150.
Accordingly, the trial court’s error was not outcome-determinative Point Two is denied.

Concltlsion

The trial court’sjudgineiit is reversed and re:nanded with directions in accordance with
Rule 30.22. The trial court is directed to allow the State to elect, within sixty days from the
issuance of the rnandate, either to retry Bell on all issues within the charges of rnurder in the first
degree and armed criminal action, or to accept the lesser convictions of murder in the second

degree and arined criminal action.

KURT S. ODENWALD, Judge

Slierri B. Sullivan, P.J., Concurs.
Lisa P. Page, J., collcurs.

34

PERRY: Thank you. Okay, having these rights in rnind, do you wish to talk
to myself and Corporal Estes at this time?

BELL: i would rather have a lawyer present.

PERRY: Okay. Okay, just so you speak kinda quietly, would you repeat
that for me? So l don’t misinterpret anything that you say.

BELL: I would rather have a lawyer present.

PERRY: Okay. Are you telling me that_if I understood what you said, you
said, "I would rather have one." is that correct?

BELL: Yes.

On a written advice-ot`-rights form, Bell wrote "NO" on the line that reads, "Having these
rights in inind, do you wish to talk to me no\v?" The detectives nevertheless continued their
attempt to get Bell to waive his Miranda rights. As the trial court found in its order denying
Bell’s motion to SuppreSS, "'I`lie detectives did not ask Bell anything specific to the investigation
but they continued to talk to him in a manner clearly designed to draw Bell into waiving his
Miranda rights and answering questions about the inurders."s According to the video’s

timestamp, the first interview lasted thirty-five rninutes.

B. intervening Hours

Two relevant events occurred between Beil’s first and second conversations with the
detectives. The first intervening event occurred between 1 I:OO a.m. and noon on February 8.
Security video of Bell’s holding cell showed Station Coinniander Barry Meadows ("Coinniaiidei'
Meadows") approach Beli, who was in his cell. Coinmander Meadows told Bell that his wifeé
had tried to call a coupie of times, but that Bell \vas not allowed to take phone calis.

The second intervening event occurred at approximately 2:00 p.m. Surveillance video of

Bell’s cell showed Corporal7 Bonhain ("Cpl. Boiiliam") approach Bell’s cell. Cpl. Boithain told

5 For example, at various points in the interrogation, Det. Periy told Bell, "you know I can talk all day if I want um
without asking you any qnestions, and 1 don’t iiitend to ask any questions," and, "You know, people have a change
of heart and like 1 said, 1 don’t want you to think that there’s any bad blood liere. 1 don’t want you to think l’rn mad
at you for not wanting to taik. Like l said, that’s your right, so. I’m not gonna force you to, but like he said, nothing
prevents us from talking to you either. And you’re gonna know us because \ve’re gonna talk to you a little bit."

5 Befl and his wife were separated, and Bell also had a girlfriend as stated above.

7 Boliliarii was subsequently promoted to Sergeaiit and was frequently referred as a "Sergeant” in our record.

5

Bell that Bell needed to soften thejurors and \varrred about how the jurors would perceive the
situation if BelE did not explain his side of the story. Cpl. Bonliarn implored Bell to put himself

in the minds of the jurors and to consider that Bell had a ruthless killing on his hands. Cpl.

Bonham also told Bell that the jury would have no mercy if it did not know what happened Cpl.

Bonham proceeded to escort Bell to the restroom.

C. Second Conversation and Bell’s Confession

At approximately 3:47 p.m. that afternoon, February 8, Det. Estes and Det. Perry
removed Bell from his cell and brought him to an interview room. After the detectives
reintrodiiced themselves, the following exchange occurred 58 seconds into the conversation:

PERRY: l don’t think it’ll keep me from sleeping today though. Kenneth,
correct? What you’d still like to go by. Just talked to your
girlfriend Uh, what l’m gonna do, I’ve got a few things l \vairiza
read to you, okay? l, sometimes people have the tendency to think
that \ve’re bluffiltg or we’re playing games and 

BELL: [lrrterjecting] You talk to my wife, or my girlfrientl?

PERRY: Uh we actually talked to both, but ljust uh Darren and Ijust talked
to your girlfriend She really didn’t know that your wife was
pregnant, but anyway um l don’t want you to think that we’re
bluffmg ya or anything of that nature, okay. Uh just want to make
sure that everything that l told you this lnorning that you believe
that_l want you to at least know that every opportunity l’ve tried
to give you was the truth; the facts as far as that.

(Emphasis added.)

Without any response from Bell, Det. Perry immediately read the full text of the arrest
warrant aloud. The trial court found that, based on Det. Perry’s testimony, department policy
and Section 544.1803 required police to read this arrest warrant to Bell, Det. Perry testified that
anyone could have read the warrant to Bell, but that, "if [Bell] did \vant to talk, I did want to be

present." The warrant stated, inter alia, that a judge found probable cause for Bell’s arrest. The

s All statutory references are to RSMo (2000).

warrant also stated that bond was set at $2.5 million. Det. Perry asked if Bell had any questions

about the warrant, and Bell said, "No." Det. Perry replied:

PERRY:

BELL:
PERRY:

BELL:
PERRY:

Okay. l\/Ian, you’re a cahn dude to sit there after lieariiig that.
Okay. You will get a copy of [the warrant] at a later point in tixne,
okay?

Uh huh.

l don’t want you to think, you know l, l tried to express to you
earlier about having the opportunity to put your side out when
we’ve been working with the Major Case Squad all day.

Uh huh.

All night uh, you will get a copy of this. lt’s actually public
record. Uh, l would imagine by tomorrow it’ll be in the newspaper
if not by tonight and on KFVS-IZ. I don’t know if you’re familiar
with either one of those two; the local liewspapel' and all that.

Without any reply from Bell, Det. Perry then read every word of the probable-cause

statement that accompanied the warrant. Det. Perry testified that atothilig required him to read

the probable-cause statement to Bell, but said that he often chose to do so in big cases. The

probable-catlse statement outlined the State’s case, including a description of the crime scene,

the identity of the victims, the physical evidence found at the scene, and the pursuit and arrest of

Bell. After Perry finished reading the probable-cause stateznelit, this exchange occurred:

PERRY:

BELL:
PERRY:

What this basically is, is the mildest, least ainount of information
that we can provide to the courts because it is public record, okay?
Yeah.

So everybody in the City of Cape will have that by tonight because
I’ve already given that to our public relations officers because l
don’t have any choice. Tliey’re a matter of public record, they did
not used to be when I was a police officer but they are now, okay?
So we put the bare ininiinuin of information so we don’t put our
whole entire case out there, okay? So, l wanted to make sure that
you understood that there’s a lot of information and evidence that
points to you and probabte cause to get a warrant and get a 
that’s the largest-l’ve been doing this for over twenty-five years
and that’s the largest bond amount I’ve ever seen on a case that
I’ve been involved in. (To Det. Estes) Have you seen anything
bigger? For yourself?

(Det Estes shakes his head no)

PERRY:

(To Bell) Uh, the reason we’ve asked you  and I’m not going to
ask you if you want to, 1 will tell you if you would like to give any

7

BELL:
PERRY:

BELL:
PERRY:
BELL:
PERRY:

information, and if you ask me, "Don  Darren ..." whoever, "Sir
..." you would like to talk to me, you would like to give your
version or account of what transpired over there; all you have to do
is ask me. l will re~advise you of your Miranda Rights because
that’s my procedures, okay?

Uh huh.

l’rn not going to ask you any questions, but l’m gonna tell you this
is a mild piece of the information that we do have, okay? And 
Can l get some water?

Huh?

Can l get some \vater?

Yeah.

(Det. Estes exits the interview room)

The titnestamp on the video showed that eleven ininutes and 30 seconds had passed since

the start of the interview. Witli Det. Estes out of the room, Bell stated:

BELL:
PERRY:
BEl,.L:
PERRY:

BELL:
PERRY:

BELL:
PERRY:
BELL:
PERRY:
BELL:
PERRY:
BELL:
PERRY:

BELL:

You said you talked to my *.vii`e and my girlfriend?

Uh, l didn’t talk to her but other officers did.

Okay.

Uh, they talked to your wife early on this morning because l know
she showed up at the location that the  at 401 South Pacific and
that \vas early, early, early.

Okay.

Or late, late-however you want to look at it uh when l first  l
went there before l came here this morning.

Okay.

And you were already in custody, so.

And my girlfriend?

Uh shejust left here.

Sl1e say anytliing? Did she say tell me anything?

Huh?

Did she tell me anything? 1 couldn’t talk to l1er.

No. She didn’t say tell you anything; I’ll tell ya that. But
obviously, l’m not going to tell you everything l, l know. Okay?
Right.

(Del Estes re~enters the interview room and hands Bell a cup of water)

PERRY:

BELL:
PERRY:

Like I said, you know a small portion of \,vhat’s going to be
released to the public, okay? And it’s enough to get a warrant for
you...

Uh huh.

Like l said, the highest bond possible that l’ve ever been involved
with in tvverity-five years, okay? Which is longer than you’ve been
on the planet, okay? Uh, l mean l’m not bragging on it or anything
like that. It’sjust, it’s very high and it’s very unique. Uh and like

l said, l’m not going to put every piece of information that we have
into that at`tidavit, okay?

BELL: Uh huh.

PERRY: For obvious reasons, okay? if you did want to tell me something,
the only way l could verify if it was real is by information that we
withhold, okay?

BELL: Right.

(Empiiasis added.)

After this exchange, the detectives continued their attexnpt to convince Bell to waive his

previously asserted right to counsel. The detectives alternated bet\veeii long monoiogues and

back-and-fortli discussions with each other, interlaced with Bell’s short coinmeiits, such as “uh

liuh" or "right." Close to an hour after Bell entered the interview rooin, Bell said, "Alriglit, l’ll

talk." Ho\vever, the detectives did not read Bell his Miranda rights at that time. A few minutes

later, this exchange occurred:

PERRY:
ESTES:
PERRY:

ESTES:
PERRY:
ESTES:
PERRY:

ESTES:

PERRY:

ESTES:
PERRY:
BELL:
PERRY:

ESTES:

BELL:
ESTES:

Okay. F or that to happen, you have to ask us.

lt seems a little silly how 

lt does, but it  we can’t ask you because you, you invoked your
rights, okay? So 

You have to either ask us or you have to say 

"i would like to ..."

 "Hey lnan, l wanna talk to you guys." We 

You understand that? And then l have to re~advise you of your
rights and then you have to tell me you would like to talk to me.
We don’t make the rules.

We don’t make  it seems silly, but that’s the way the court has
said it lias to be done.

And l don’t wanna go outside and then you blu1't something to me
and 

Yeah.

 and then l don’t have this, because then 

Wliat’s that?

Well I have to have, it’s saying you wanna talk to me.

Yeah, we have to-just like we did this lnorning. We have to
advise you again of your rights, and then this time if you, if you do
wish to talk to us 

Uh huh.

 you have to say, where it says, "Haviiig these rights in mind, do
you wish to talk to me now?" You have to, you have to say,
"Yes." But before we can even get to that, you have to either intake

9

the statement, "Hey, I want to talk to you guys." Or B, uh "Can 1

talk to you guys?" Sometlritig like that, you know?
BELL: Can l talk to you?

Bell’s final comment occurred one hour and three minutes into the conversation,
according to the timestamp on the video. The detectives read Bell his Miranda rights, and Bell
waived those rights. Bell subsequently confessed to shooting both victims.

III. Subsequent Procedtiral History

An amended information charged Bell with two counts of first-degree tnurder and one
count of armed criminal action. Bell filed a motion to suppress his confession, contending inter
alia that the detectives failed to cease their interrogation after Bell had invoked his right to
counsel. The trial court issued a written "Order and judgment on Motion to Suppress" denying
Bell’s motion.

Regarding the first conversation, the trial court found that Bell was well acquainted vvith
the criminal justice system and that he clearly understood his right to remain silent. For the
detectives’ part, the trial court found that the detectives exercised no coercion upon Bell, but the
detectives persisted in their subtle attempts to persuade Bell to talk. Nevertheless, the trial court
concluded that Bell made no admissions; therefore, there were no statements to suppress from
the first conversation.

Regarding the second conversation, the trial court concluded that Bell initiated the
conversation with police. The trial court reasoned, "Bell’s inquiry about his wife and girlfriend
can fairly be said to represent a desire on his part to open up a more generalized discussion
relating directly or indirectly to the investigation." The trial court determined that Bell’s
questions allowed the detectives to continue speaking to Bell even though Bell had not yet said,
"Alriglit, I’ll talk," and, “Can I talk to you?" The trial court also found that Bell’s waiver of his

Mirarida rights was knowing and intelligent under the totality of the circumstances.

10

