STATE OF MISSOURI,                             )
                                               )
                       Respondent,             )
                                               )
        vs.                                    )       No. SD34271
                                               )       Filed: December 15, 2016
JASON RUBIN BRUCE,                             )
                                               )
                       Appellant.              )


                 APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY

                                Honorable William E. Hickle, Judge

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS

        Jason Rubin Bruce (“Bruce”), appeals the judgment of the trial court following his

convictions for the unclassified felony of first-degree rape, two unclassified felonies of first-degree

sodomy, the class B felony of first-degree burglary, and the class C felony of felonious restraint.

Bruce challenges the judgment of the trial court in two points on appeal. Finding no merit to

Bruce’s first point, but finding merit to Bruce’s second point, we modify and affirm the judgment

of the trial court.
                            Factual and Procedural Background

       Bruce does not challenge the sufficiency of the evidence to support his convictions and we

recite only those facts necessary to review his points on appeal. We view the evidence in the light

most favorable to the judgment, accepting as true all facts and inferences favorable to the

judgment, and disregarding evidence and inferences to the contrary. State v. Burks, 373 S.W.3d

1, 4 (Mo.App. S.D. 2012). The evidence adduced at trial is recited in accordance with these

principles.

       On November 7, 2014, Bruce surreptitiously entered Victim’s residence while Victim was

taking a shower. Bruce tied up Victim with shoestrings, then sexually assaulted her. Bruce untied

Victim and forced her to sign-off of a computer video-chat that, unbeknownst to Bruce, had been

running with Victim’s boyfriend. After Victim complied, Bruce tied her up again, put her in a

closet, and ransacked Victim’s home. Victim asked what Bruce was looking for. When Bruce

said he was looking for Victim’s car keys, Victim offered to help find them. Bruce untied Victim

and they both unsuccessfully searched for the keys. Bruce again tied Victim up, shoving clothing

in her mouth so she could not speak, and shut her in a closet and then a bathroom. Eventually,

Bruce untied Victim. He said that if she told anyone what he had done, he would kill her. Then

Bruce left.

       The authorities were notified, and Victim identified Bruce as her attacker. Sergeant Frank

Hawkins (“Sgt. Hawkins”) responded to the scene. After speaking with Victim, Sgt. Hawkins

went across the street to Bruce’s home, where he found Bruce sitting on the hood of his car. Bruce

claimed he did not know Victim, but said he would be willing to talk to a detective at the police

station, and that he would drive himself there.




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           At the police station, Detective Adam Meyer (“Detective Meyer”) met Bruce when he

arrived. Detective Meyer introduced himself, and asked if Bruce would accompany him back to

an interview room, which Bruce agreed to do. Bruce initially denied that he had ever spoken with

Victim, and also denied having ever engaged in sexual conduct with Victim.

           After Detective Meyer asked Bruce about whether his DNA or hair might be at Victim’s

home, Bruce admitted to meeting Victim. He suggested they had met when Victim was walking

her dog, and that the two had engaged in “some type of sexual relations” in Victim’s apartment.

Detective Meyer asked Bruce why he had not been truthful from the beginning, and Bruce said he

did not want his wife to find out what he had done with Victim. Detective Meyer indicated that

he would not tell Bruce’s wife. Bruce then gave a more detailed account of, by Bruce’s account,

consensual sexual acts he and Victim engaged in at Victim’s apartment. These acts, Bruce alleged,

did not include vaginal sex or oral sex.

           Detective Meyer and Bruce took a break so that Detective Meyer could get some water and

Bruce could smoke a cigarette. Detective Meyer went outside with Bruce while he smoked, and

then the two returned to the interview room. Bruce told Detective Meyer that he wanted to leave.

Detective Meyer told Bruce that he could not leave, placed him under arrest, and read him his

Miranda 1 rights. Bruce said he understood his rights, and agreed to speak further with Detective

Meyer. He indicated that he was at Victim’s house in the late evening a few days before the

assault, but denied going to Victim’s house on the day of the assault.

           Forensic evidence showed that Victim’s DNA was found on Bruce’s boxer shorts the day

he was interviewed, and that Bruce’s DNA was on Victim’s body the day of the assault.




1
    Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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       After the close of evidence, instructions, and argument by counsel, the jury found Bruce

guilty of first-degree rape, two counts of first-degree sodomy, first-degree burglary, and felonious

restraint. Having found Bruce to be a prior offender, the trial court sentenced Bruce to three life

sentences on each of the rape and sodomy counts, fifteen years on the burglary count, and seven

years on the felonious restraint count, with all sentences to run consecutively. This appeal

followed.

       In two counts on appeal, Bruce asserts:

       1.      The trial court erred in admitting the statements Bruce made during police
               interrogation because they arose out of a custodial interrogation without a Miranda
               warning; and

       2.      The written judgment is in error in that it states that Bruce is sentenced to ninety-
               nine years in prison for each of Counts I, II, and III because this conflicts with the
               trial court’s oral pronouncement in court that it was sentencing Bruce to life in
               prison for each of those counts.

                                      Principles of Review

                A trial court’s ruling on a motion to suppress will be reversed only if it is
       clearly erroneous. The trial court’s ruling will be deemed clearly erroneous if, after
       review of the entire record, this Court is left with the definite and firm impression
       that a mistake has been made. This Court defers to the trial court’s factual findings
       and credibility determinations and considers all evidence and reasonable inferences
       in the light most favorable to the trial court’s ruling. Whether conduct violates the
       Fourth or Fifth Amendments is a question of law that this Court reviews de novo.

State v. Lammers, 479 S.W.3d 624, 630 (Mo. banc 2016) (internal quotations and citations

omitted). The entire record, in the context of the review of a court’s suppression ruling, includes

the evidence at both the suppression hearing and at trial. State v. Gaw, 285 S.W.3d 318, 319 (Mo.

banc 2009).




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                                            Analysis

                              Point I: Bruce Was Not in Custody

       In his first point, Bruce claims the trial court erred in admitting statements Bruce made

during his police interrogation because they were obtained in a custodial interrogation without a

Miranda warning.

       A criminal suspect is entitled to Miranda warnings to protect his Fifth Amendment right

against self-incrimination, but only when the suspect is subjected to a “custodial interrogation.”

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Werner,

9 S.W.3d 590, 595 (Mo. banc 2000). “A custodial interrogation occurs only when the suspect is

formally arrested or is subject to arrest-like restraints.” State v. Glass, 136 S.W.3d 496, 508–09

(Mo. banc 2004). “In Missouri, ‘custodial interrogation’ is defined 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.” Id. at 511. “In the absence of arrest or restraint of

freedom of movement, questioning that takes place in a coercive environment does not require

Miranda warnings.” Id. (internal quotation and citation omitted).

       “Custody is determined by an examination of the totality of the circumstances.” Werner,

9 S.W.3d at 595. The Supreme Court of Missouri noted, “an accused’s freedom to leave the scene

and the purpose, place, and length of an interrogation are factors to be considered in making a

determination of custody.” Id. (quoting United States v. Griffin, 922 F.2d 1343, 1348 (8th Cir.

1990)). “In examining the totality of the circumstances, courts may also consider an individual’s

personal background, experience, familiarity with police questioning, maturity, education, and

intelligence.” Id. at 595–96. The supreme court went on to enumerate six additional factors for

courts to take into consideration when determining custody:



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       (1) whether the suspect was informed at the time of questioning that the questioning
       was voluntary, that the suspect was free to leave or request the officers to do so, or
       that the suspect was not under arrest;

       (2) whether the suspect possessed unrestrained freedom of movement during
       questioning;

       (3) whether the suspect initiated contact with authorities or voluntarily acquiesced
       to official requests to answer questions;

       (4) whether strong arm tactics or deceptive stratagems were employed during
       questioning;

       (5) whether the atmosphere was police dominated; or

       (6) whether the suspect was placed under arrest at the termination of questioning.

Werner, 9 S.W.3d at 595 (quoting Griffin, 922 F.2d at 1349). The presence and absence of these

factors, while not exhaustive, guide courts in accessing the totality of the circumstances. Werner,

9 S.W.3d at 596-97. Indeed, our courts have held that “it is not necessary or even always

appropriate to determine custody by weighing the presence or absence of the six Griffin/Werner

factors in each case. Rather, we look at the totality of the circumstances.” State v. Schneider, 483

S.W.3d 495, 501 (Mo.App. E.D. 2016) (internal quotation and citation omitted). As our supreme

court recently indicated, “[t]he simple fact that investigative questioning takes place in a

potentially coercive environment does not require Miranda warnings.” Lammers, 479 S.W.3d at

632 (internal quotation and citation omitted).

       This Court’s inquiry into custody must be resolved based “on the objective circumstances

of the interrogation, not on the subjective views harbored by either the interrogating officers or the

person being questioned.” State v. Hill, 247 S.W.3d 34, 46 (Mo.App. E.D. 2008) (internal

quotations and citations omitted). “The objective, reasonable person test is appropriate because it

does not place on the police the burden of anticipating the frailties or idiosyncrasies of every person

whom they question.”       Id. at 47 (internal quotations and citations omitted).         With these

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prescriptions in mind, the ultimate question before us is whether a reasonable person would have

felt at liberty to terminate or leave the interrogation. Id. at 48.

        Here, Bruce argues he was subject to custodial interrogation because of the following facts:

the interrogation room was difficult to get to; Officer Meyer walked with Bruce when Bruce went

to smoke a cigarette; Bruce acquiesced to a law enforcement request that he talk to detectives at

the police station; Officer Meyer told Bruce that he knew Bruce had some sort of sexual contact

with Victim; the interrogation room was small and of spare décor; and Bruce was arrested at the

termination of the meeting.

        After reviewing the entire record, this Court is not left with the definite and firm impression

that a mistake has been made. Bruce voluntarily agreed to meet detectives at the police station,

and drove there by himself. Bruce was questioned in an ordinary interview room, and was not

physically restrained, or told he could not leave. When Bruce wanted to smoke a cigarette, he was

allowed to do so. While Officer Meyer told Bruce that he knew Bruce had some sort of sexual

contact with Victim, it does not follow that a reasonable person would have then deduced that he

was not free to leave. While Bruce was eventually arrested, that act does not impact how a

reasonable person would have viewed his opportunity to leave or terminate the interview

beforehand.

        In State v. Sardeson, we found that the suspect was not in custody during his interrogation

where, like here, the suspect voluntarily went to the police station for questioning, suspect was not

physically restrained, police used deceptive strategies and psychological ploys against the suspect,

and suspect was arrested after the interview. 220 S.W.3d 458, 468 (Mo.App. S.D. 2007).

        The facts of which Bruce complains are largely incident to almost any serious police

investigation. As our supreme court has indicated, “[t]he simple fact that investigative questioning



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takes place in a potentially coercive environment does not require Miranda warnings.” Lammers,

479 S.W.3d at 632 (internal quotation and citation omitted).

       The trial court did not err in admitting Bruce’s statements made during his police interview.

Point I is denied.

                               Point II: Error in Written Judgment

       In his second point, Bruce argues that the trial court erred in issuing a written judgment

stating that Bruce had been sentenced to ninety-nine years in prison for Counts I, II, and III because

this conflicts with the trial court’s oral pronouncement at sentencing that it was sentencing Bruce

to life in prison for each of those counts.

       “The failure to accurately memorialize the trial court’s judgment as announced in open

court is a clerical error.” State v. Hays, 396 S.W.3d 385, 387 (Mo.App. W.D. 2013) (internal

quotation and citation omitted). “Where there is a material variance between the written judgment

and the oral pronouncement, the oral pronouncement is controlling.” Lucas v. State, 451 S.W.3d

336, 343 (Mo.App. E.D. 2014).

       At the sentencing hearing, the court pronounced it was sentencing Bruce to life sentences

on each of Counts I, II, and III. The written judgment, however, states Bruce was sentenced to

99-year sentences on each of Counts I, II, and III.

       We reverse the judgment as to the written sentence of Bruce and remand with instructions

to the trial court to correct the written sentence consistent with the trial court’s oral pronouncement

at sentencing. The judgment is affirmed in all other respects.


WILLIAM W. FRANCIS, JR., J. – OPINION AUTHOR

GARY W. LYNCH, P.J. - CONCURS

DANIEL E. SCOTT, J. - CONCURS

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