In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
STATE OF MISSOURI, ) No. ED100065
)
Respondent, ) Appeal from the Circuit Court
) of St. Louis County
vs. ) 10SL-CR08418-01
)
DERRICK WILSON, ) Honorable Michael D. Burton
)
Appellant. ) Filed: November 25, 2014
Derrick Wilson appeals the judgment entered upon a jury verdict convicting him of two
counts of first-degree statutory sodomy and one count of first-degree child molestation. We
affirm.
I. BACKGROUND
A. Evidence Adduced at Trial
Wilson was charged with two counts of first-degree statutory sodomy and one count of
first-degree child molestation. The following evidence was adduced at Wilson’s jury trial.
In September 2010, Wilson was living in an apartment with his girlfriend and two of her
children, eleven-year-old B.S. and her nine-year-old brother. The children’s older sister,
seventeen-year-old A.S., would also sometimes stay the night in the apartment.
On the evening of September 19, 2010, all three children were sleeping in the same
bedroom. A.S. and her brother were in the bed, and B.S. was on the floor. At one point, A.S.
woke up and saw Wilson’s head in between B.S.’s legs and heard Wilson licking and moaning.
One of B.S.’s legs was up in the air and the other leg was down, and Wilson’s hands were
“underneath [B.S.’s] back, butt area.”
A.S. did not immediately know what to do, and she stayed in bed for about five minutes.
When A.S. got out of bed, Wilson jumped up and said “good morning.” Later that night, A.S.
went to her grandmother’s house, A.S. told her grandmother what she had seen, and the police
were contacted.
Wilson was arrested at about 11:00 p.m. on the night of the incident and was
subsequently interviewed by police. During the interview, Wilson admitted he touched B.S.’s
breasts. Wilson also admitted he placed his finger inside B.S.’s vagina and placed his tongue on
B.S.’s vagina on two separate occasions, including once when B.S. returned from a trip to
Florida.
On the day following the incident, B.S. was examined at the hospital and a sexual assault
kit was collected. The exam revealed that B.S. had a sexually transmitted disease that could be
transferred by oral sex. Additionally, a DNA analysis showed that male DNA consistent with
Wilson’s DNA was on B.S.’s underwear.
B.S. was interviewed at the Children’s Advocacy Center. During the interview, B.S.
stated that Wilson touched her on her “private” between her legs and on her chest on two
occasions, and that he placed his finger inside her. B.S. also stated that she felt Wilson’s head
moving between her legs when she was asleep.
B.S. testified at trial that Wilson touched her chest. She also testified that Wilson put his
fingers inside her vagina and put his mouth on her vagina on two separate occasions, once when
she came back from a trip to Florida and again in September 2010.
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B. Relevant Procedural Posture Including Wilson’s Motion to Suppress
Prior to Wilson’s jury trial, he filed a motion to suppress his statements to the police.
The following evidence regarding Wilson’s interview with police was adduced at the hearing on
his motion to suppress and at trial.
Detective David Rohlfing testified that at approximately 4:00 a.m. on September 20,
2014, he began his interview of Wilson by asking him general background questions designed to
“build a rapport.” Specifically, Detective Rohlfing asked Wilson his date of birth, the spelling of
his name, his Social Security number, where he worked, where he lived, and what kind of car he
drove. The questions did not elicit any incriminating information from Wilson.
Three minutes after asking Wilson general background questions, at 4:03 a.m., Detective
Rohlfing read Wilson his Miranda rights. Wilson verbally indicated that he understood his
Miranda rights and also signed a form at 4:04 a.m. acknowledging that he understood his rights.
Detective Rohlfing testified that Wilson’s Miranda rights were given before he asked Wilson
any incriminating or “guilt-seeking questions” or “any questions about the crime[s].”
After Wilson indicated he understood his Miranda rights, Detective Rohlfing questioned
Wilson about whether he had any sexual contact with B.S., but Wilson denied that any improper
contact had occurred. Detective Rohlfing exited the interview room, and Captain Timothy Fagan
went into the interview room and began questioning Wilson. Wilson eventually admitted to
Captain Fagan that he touched B.S.’s breasts, and Wilson admitted he placed his finger inside
B.S.’s vagina and placed his tongue on B.S.’s vagina on two separate occasions.
After the hearing on Wilson’s motion to suppress, the trial court entered an order denying
the motion. In its order, the trial court found that “[w]ithin three minutes of the interview
(essentially after making introductions), Rohlfing read [Wilson] his Miranda rights. Without
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hesitation, [Wilson] agreed to waive his rights, signing the standard Miranda waiver form that
Rohlfing provided to him.” The trial court also found that “[t]here was nothing done that was
coercive” and that Wilson’s statements to the police were “given voluntarily,” after Wilson
understood and waived his Miranda rights.
Defense counsel objected when Wilson’s statements to police were introduced at trial,
and the trial court overruled the objections. After the close of all the evidence, the jury found
Wilson guilty of two counts of first-degree statutory sodomy and one count of first-degree child
molestation. Wilson filed a motion for new trial which asserted the trial court erred in denying
his motion to suppress. The trial court denied Wilson’s motion for new trial and sentenced
Wilson to a total of seventeen years’ imprisonment. This appeal followed.
II. DISCUSSION
In Wilson’s sole point on appeal, he asserts the trial court erred in denying his motion to
suppress and admitting his statements to the police wherein he confessed to the charged criminal
conduct. We disagree.
Our review of a trial court’s denial of a motion to suppress is limited to a determination
of whether the decision is supported by substantial evidence. State v. Byrd, 389 S.W.3d 702, 707
(Mo. App. E.D. 2012). In making this determination, we consider the evidence presented at both
the suppression hearing and at trial, and we view the facts and reasonable inferences therefrom in
the light most favorable to the trial court’s ruling. Id. This Court will reverse the trial court’s
ruling only if it is clearly erroneous. Id. Additionally, while we defer to the trial court’s
determinations of witness credibility and the trial court’s findings of fact, we review questions of
law de novo. State v. Nylon, 311 S.W.3d 869, 884 (Mo. App. E.D. 2010).
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Pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), a person in police custody
must be warned prior to an interrogation that he has the right to remain silent, that anything he
says could be used against him in a court of law, that he has the right to an attorney, and that if
he cannot afford an attorney one will be appointed for him (“Miranda warnings”). In Missouri,
“custodial interrogation” is defined as “questioning initiated by law enforcement officers after a
person has been taken into custody.” State v. Collings, 2014 WL 4086313 at *8 (Mo. banc 2014)
(quotation omitted). “Statements obtained during a custodial interrogation not preceded by
Miranda warnings are subject to suppression at trial.” Id. When Miranda warnings are given,
an accused may knowingly and intelligently waive his rights and agree to answer questions or
make a statement. Miranda, 384 U.S. at 479. To prove that a defendant’s statements to the
police are admissible at trial, the State must show, (1) the challenged statements complied with
Miranda’s guidelines; and (2) the statements were voluntarily made. Collings, 2014 WL
4086313 at *8.
In this case, Wilson argues the trial court erred in admitting his post-Miranda statements
to the police because Detective Rohlfing did not give Wilson Miranda warnings at the beginning
of the interview, before the detective asked Wilson general background questions in an effort to
build a rapport. To support his argument, Wilson relies on Missouri v. Seibert, 542 U.S. 600
(2004). For the reasons set forth below, we find that Seibert is inapplicable to the facts of this
case.
In Seibert, the defendant was arrested for murder and taken to the police station where
she was questioned about the crime for thirty to forty minutes. Id. at 604-05. The officer
deliberately withheld the Miranda warnings during this initial stage of questioning, and the
defendant made incriminating statements regarding her involvement in the murder. Id. at 605-
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06. The officer gave the defendant a twenty-minute break, and when he returned to the interview
room, he turned on a tape recorder, advised the defendant of the Miranda warnings, obtained a
waiver, and resumed questioning. Id. at 605. The officer confronted the defendant with her pre-
warning incriminating statements, and the defendant repeated the incriminating information
during the second half of the interrogation. Id. at 605-06. The defendant was charged with first-
degree murder and filed a motion to suppress her pre-Miranda warning and post-Miranda
warning statements. Id. at 605. At the suppression hearing, the officer testified he made a
“conscious decision” to withhold the Miranda warnings and that he used an interrogation
technique of “question first, then give the warnings, and then repeat the question ‘until I get the
answer that she’s already provided once.’” Id. at 605-06.
At issue on appeal was the admissibility of defendant’s post-Miranda warning
statements, and a majority of the U.S. Supreme Court held that the statements were inadmissible.
Id. at 603, 617, 618, 622. Relevant portions of the Supreme Court’s Seibert decision consisted
of, (1) a plurality opinion authored by Justice Souter and joined by Justice Stevens, Justice
Ginsburg, and Justice Breyer; and (2) an opinion concurring in the result authored by Justice
Kennedy. Id. at 603-17, 618-22. Both the plurality and Justice Kennedy’s concurrence focused
on the fact that, in Seibert, a “two-step interrogation” took place, i.e., “a police protocol for
custodial interrogation that calls for giving no warnings of the right to remain silent and counsel
until interrogation has produced a confession . . . then issuing Miranda warnings . . . then leading
the suspect to cover the same ground a second time.” See id.; Collings, 2014 WL 4086313 at *9
(quoting Seibert, 542 U.S. at 604).
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Because Justice Kennedy’s concurrence in Seibert provided the narrowest rationale1 for
finding the defendant’s post-Miranda warning statements were inadmissible, the Missouri
Supreme Court adopted Justice Kennedy’s concurrence as the test Missouri Courts use to
determine “whether a ‘two-step interrogation’ has occurred, rendering repeated statements made
to police admissible.” Collings, 2014 WL 4086313 at *9; State v. Gaw, 285 S.W.3d 318, 323
(Mo. banc 2009). Pursuant to Justice Kennedy’s concurrence, “a confession is inadmissible
despite a belated Miranda warning where a ‘two-step interrogation technique was used in a
calculated way to undermine the Miranda warning[s].’” Gaw, 285 S.W.3d at 323 (quoting
Seibert, 542 U.S. at 622).
In this case, a “two step interrogation,” as that term is defined by the U.S. and Missouri
Supreme Courts, was not used. Detective Rohlfing did not withhold the Miranda warnings until
Wilson confessed, then issue warnings, then lead Wilson to cover the same ground a second time
and have him repeat his incriminating statements. Instead, Detective Rohlfing began his
interview of Wilson by asking him general background questions (his date of birth, the spelling
of his name, his Social Security number, where he worked, where he lived, and what kind of car
he drove). These questions were designed to “build a rapport” and did not elicit any
incriminating information from Wilson. Three minutes after asking Wilson general background
questions, at 4:03 a.m., Detective Rohlfing read Wilson his Miranda rights. Wilson then waived
his rights, and subsequently confessed to involvement in the crimes. Because a two-step
interrogation process was not used, Seibert is inapplicable to the facts of this case. See State v.
Hughes, 272 S.W.3d 246, 255 (Mo. App. W.D. 2008) (similarly distinguishing Seibert, finding
1
“[W]here a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five
Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds.” State v. Gaw, 285 S.W.3d 318, 322-23 (Mo. banc 2009) (quoting Marks v.
U.S., 430 U.S. 188, 193 (1977) (internal quotations omitted)).
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that “[u]nlike Seibert . . . this is not a case where [the defendant] was questioned concerning the
circumstances of the offense, then advised of his rights and simply urged to repeat incriminating
statements he had previously made”).
Because Seibert is inapplicable, we must determine the admissibility of Wilson’s post-
Miranda warning statements pursuant to the standard set forth in Oregon v. Elstad, 470 U.S. 298
(1985). Hughes, 272 S.W.3d at 256, 256 n. 7 (quoting Seibert, 542 U.S. at 622 (Kennedy, J.,
concurring) (“[t]he admissibility of postwarning statements should continue to be governed by
the principles of Elstad unless the deliberate two-step strategy was employed”)). Elstad
examined the issue of “whether an initial failure of law enforcement officers to administer the
[Miranda warnings], without more, ‘taints’ subsequent admissions made after a suspect has been
fully advised of and has waived his Miranda rights.” 470 U.S. at 300. The U.S. Supreme Court
held that a suspect who has responded to unwarned yet uncoercive police questioning is not
thereby disabled from waiving his rights and confessing after he has been given the Miranda
warnings. Id. at 318. The Supreme Court reasoned:
It is an unwarranted extension of Miranda to hold that a simple failure to
administer the warnings, unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect's ability to exercise his free
will, so taints the investigatory process that a subsequent voluntary and informed
waiver is ineffective for some indeterminate period. Though Miranda requires
that the unwarned admission must be suppressed, the admissibility of any
subsequent statement should turn in these circumstances solely on whether it is
knowingly and voluntarily made.
...
The relevant inquiry is whether, in fact, the second statement was [] voluntarily
made. As in any such inquiry, the finder of fact must examine the surrounding
circumstances and the entire course of police conduct with respect to the suspect
in evaluating the voluntariness of his statements. The fact that a suspect chooses
to speak after being informed of his rights is, of course, highly probative.
Id. at 309, 318.
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In this case, Wilson only argues that the allegedly belated administration of the Miranda
warnings renders his subsequent statements inadmissible; Wilson makes no claim that he was
coerced into giving his post-Miranda warning statements or that his waiver of his Miranda rights
was anything other than knowing and voluntary. Moreover, in finding that Wilson’s post-
Miranda statements were admissible, the trial court found, “[t]here was nothing done that was
coercive” and that Wilson’s statements to the police were “given voluntarily,” after Wilson
understood and waived his Miranda rights. In the absence of any contrary argument by Wilson,
we find the trial court could properly conclude that Wilson’s post-Miranda warning statements
were knowingly and voluntarily made and therefore admissible under the Elstad analysis. See
Hughes, 272 S.W.3d at 255, 257 (finding no error under similar circumstances, including where
the officer failed to give the defendant the Miranda warnings at the outset of the interview in
order to build a rapport). Therefore, the trial court did not clearly err in denying Wilson’s
motion to suppress his statements to the police wherein he confessed to the charged criminal
conduct. Point denied.
III. CONCLUSION
The judgment of the trial court is affirmed.
ROBERT M. CLAYTON III, JUDGE
Patricia L. Cohen, P.J., and
Roy L. Richter, J., concur.
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