STATE OF MISSOURI,                     )
                                       )
                  Respondent,          )
                                       )
      vs.                              )    No. SD32780
                                       )
DAVID K. LAMPKINS,                     )    FILED: May 20, 2014
                                       )
                  Appellant.           )

            APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY

                      Honorable Kenneth M. Hayden, Judge

AFFIRMED

      A jury found David Lampkins guilty of six counts of statutory sodomy. On

appeal, he asserts that his statements to police should not have been admitted “in

that [he] inquired about an attorney on two separate occasions, but Detective

Stephens continued the interrogation ….” We affirm.

                                  Background

      Lampkins was interviewed while being held on an unrelated warrant. He was

read and signed a written waiver of his Miranda rights without question or request
for counsel. Some two hours later, he was confronted with details of the victims’

disclosures and the following exchange occurred:

         [Lampkins]: Okay, at this point, what am I better off to do, am I
            better off just to keep talking to you, or do I need to get an
            attorney? I’m just asking you off the record because I honestly
            don’t know at this point.

         [Detective]: Ultimately, that’s your decision to make, OK? The
            decision on invoking your right to an attorney is a big decision to
            make. I stand by what I’ve been saying from the get go, which is,
            you need to take the opportunity to explain your position on this.

         [Lampkins]: Right, and I feel comfortable doing that here with you.
            I’m asking you, personally, off the record or whatever you want
            to call it, if that’s what I need?

         [Detective]: I can’t give you advice on that. All I can do is tell you
            what your rights are. And I think that you’re doing the right thing
            right now by explaining yourself, by explaining what’s going on. I
            think that by clamming up and just saying, you know, “I don’t
            want to talk about it, where nothing happened –”

         [Lampkins]: Well, that’s not what I’m trying to do.

         [Detective]: I’m trying to explain what advice I can give you. I think
            that by doing that, you put yourself into a position where
            everybody just believes what the girls say. You know you’re the
            only person that can say that they’re not telling the whole truth.
            So if you do that, then you put yourself in that position.

         [Lampkins]: Right.

         [Detective]: It’s a big decision to make, you know, it’s a big thing to
            think about. But, again, talk for as long as you’re comfortable,
            and when you’re not comfortable anymore, you still have the
            right to tell me that [you] don’t want to talk.

Minutes later, this exchange occurred:

         [Lampkins]: But my question is, okay, I’m gonna tell you what you
            what happened –

         [Detective]: Okay –


                                           2
[Lampkins]: My question was — do I need an attorney to tell you
   this before I tell you this? That’s my concern right now.

[Detective]: Okay.

[Lampkins]: I’m going to be honest with you.

[Detective]: You don’t have to have an attorney to tell me anything –

[Lampkins]: That’s not gonna screw me?

[Detective]: It’s not — you don’t have to have an attorney to tell me
   anything. You have the right to have an attorney before you tell
   me anything. And that’s rights that have been given to you by
   people that fought for your freedom long before either one of us
   was alive.

[Lampkins]: Right.

[Detective]: What’s important now is telling me the truth. That’s all.
   That’s what’s important is being honest with me and telling me
   the truth.

[Lampkins]: Right.

[Detective]: And you’re at an excellent point –

[Lampkins]: That’s not a problem.

[Detective]: You’re at an excellent point right now to do that. And
   for me to be able to walk out of this room and tell everybody,
   “You know what? This guy’s honest. He’s being honest with me.
   He’s telling me the truth. He’s admitted to things that have
   happened but they certainly didn’t happen this way.” And that’s
   where we are right now. That’s the exact moment that we’re
   sitting in right now. And it’s that moment that you have to make
   that decision whether or not you let it stand on what the girls
   were saying, or whether you want to tell the truth about what
   really happened.

[Lampkins]: Okay, let’s do one thing at a time then. What’s the first
   issue you want me to talk about?




                                 3
Incriminating statements made thereafter were admitted at trial over Lampkins’

objection.

                         Applicable Law and Analysis

      “Without a clear assertion of the right to counsel, police officers may continue

questioning.” State v. Shifkowski, 57 S.W.3d 309, 317 (Mo.App. 2001) (citing

Davis v. U.S., 512 U.S. 452, 460 (1994)). “‘[A] statement either is such an

assertion of the right to counsel or it is not.’” Davis, 512 U.S. at 459 (quoting

Smith v. Illinois, 469 U.S. 91, 97-98 (1984)). Police are not forced to cease

questioning “when the suspect might want a lawyer. Unless the suspect actually

requests an attorney, questioning may continue.” Id. at 462.         If the suspect’s

statement is ambiguous or equivocal, “officers have no obligation to stop questioning

him.” Id.

      Lampkins’ statements did not differ materially from those in cases where

continued questioning was upheld. See Davis, 512 U.S. at 462 (“Maybe I should

talk to a lawyer” was not a request for counsel); State v. Bucklew, 973 S.W.2d 83,

90-91 (Mo. banc 1998) (“Well do you think I should have an attorney present?” and

“How fast could you get an attorney here?” were ambiguous, equivocal, and did not

invoke right to counsel); State v. Mateo, 335 S.W.3d 529, 535-36 (Mo.App. 2011)

(same result where suspect had asked “if there was an attorney there for him,” or if

an attorney was “available” to him, and “Do I need an attorney?”); Shifkowski, 57

S.W.3d at 316-18 (same result where suspect remarked that he was “thinking about

talking to a lawyer”); State v. Jones, 914 S.W.2d 852, 860-61 (Mo.App. 1996)

(same result where suspect asked “Do I need an attorney?”).


                                          4
                                     Conclusion

     We deny the point and affirm the convictions.

DANIEL E. SCOTT, J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, P.J. – CONCURS

WILLIAM W. FRANCIS, JR., C.J. – CONCURS




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