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.
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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