STATE OF MISSOURI, ) 

 ) 

 Plaintiff-Respondent, ) 

 ) 

vs. ) No. SD32459 

 ) 

JAMES CARL DUKE III, ) Filed: April 21, 2014 

 ) 

 Defendant-Appellant. ) 

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY 

Honorable Thomas E. Mountjoy Circuit Judge 

AFFIRMED 

James C. Duke ("Defendant") appeals from his convictions after a bench 

trial for first-degree murder and armed criminal action. See §§ 565.020, 571.015, 

RSMo (2000). Defendant presents three points on appeal: (1) the trial court 

clearly erred in admitting Defendant's confession into evidence; (2) the trial court 

abused its discretion in allowing a detective to testify he found no evidence of 

self-defense; and (3) the trial court plainly erred in permitting the prosecutor to 

discuss case law during closing argument. These arguments are without merit, 

and we affirm the trial court's judgment. 

Factual and Procedural Background 

 On March 21, 2010, Defendant shot Kody Ray ("Victim") on Victim's front 

porch while Victim's family was celebrating a child's birthday party inside. 
2 

Victim died as a result of a "relatively straight-through shot" just behind his ear. 

Ultimately, investigators developed Defendant as a suspect in the shooting, and 

Victim's uncle identified Defendant in a photographic line up. 

 On March 25, 2010, police officers arrested Defendant as he left his 

parents' home. Defendant was transported to the police station to be interviewed 

by Detective Todd King ("Detective King"). Once at the station Defendant was 

taken to an interview room. Detective King read Defendant his Miranda1 rights 

from a form. Defendant stated he understood those rights. Defendant then made 

a statement in which he admitted shooting Victim. Defendant explained there 

was a "beef" between Victim and one of Defendant's friends. According to 

Defendant, Victim was known to have a gun. Defendant and his friend decided 

Defendant would be the one to confront Victim because Defendant was the only 

one of their group who had a gun. Defendant claimed he did not try to kill 

Victim, but he thought Victim was going to pull a gun on him. 

 Defendant was charged with first-degree murder and armed criminal 

action. Defendant filed a motion to suppress the statement he made to Detective 

King, alleging, among other things, that his relinquishment of his Miranda

rights was not knowing and voluntary. The trial court denied the motion after a 

hearing. Defendant then waived his right to a trial by jury and received a bench 

trial. The trial court found Defendant guilty as charged and sentenced Defendant 

to life without parole for first-degree murder and thirty years incarceration for 

armed criminal action. This appeal followed. 

 

1

See Miranda v. Arizona, 384 U.S. 436 (1966).
3 

Point I: Miranda

 In his first point, Defendant argues the trial court clearly erred in denying 

his motion to suppress the statement he made to Detective King because 

Defendant's relinquishment of his right to remain silent was rendered unknowing 

and involuntary by statements made by Detective King during the Miranda

warning. This argument is without merit. 

 When a criminal defendant files a motion to suppress, the State bears the 

burden of proving the motion should be denied by a preponderance of the 

evidence. See State v. Pennington, 408 S.W.3d 780, 784 (Mo. App. W.D. 

2013). Appellate review of a trial court's decision regarding a motion to suppress 

is for clear error which will be found when the appellate court is left "with a 

definite and firm impression that a mistake was made." State v. Ruff, 360 

S.W.3d 880, 885 (Mo. App. S.D. 2012) (quoting State v. Jackson, 248 S.W.3d 

117, 121 (Mo. App. S.D. 2008)). "In the course of our review, we consider the 

records of both the suppression hearing and the trial, and we view the entirety of 

the record before us in the light most favorable to the trial court's ruling on the 

motion to suppress." Id. (citations omitted). 

 Viewed in that light, the following additional facts surrounding 

Defendant's statement to Detective King were adduced at the suppression 

hearing and at trial. After his arrest, Defendant was taken to the police station 

and placed in an interview room. A short time later, Detective King entered the 

room and removed Defendant's handcuffs. The following exchange occurred on 

the video that was made of the interview: 
4 

DETECTIVE KING: Oh, well, lots of things, lots of things going on 

and . . . of course you're down here. I'm sure you've got a good idea 

of why you're down here. We need to a, need to get a few things 

lined out because there's lots of people, lots of people telling us 

things and I think you probably need to get your side out there. 

Ok? So I'm going to, uh, since you're down here I'm gonna, going to 

advise you your rights and then we'll kind of go from there and uh 

get your side to the story out there. All right? If I didn't tell you 

when I walked in my name is Todd, the detective down here. I'll, I'll 

shoot you straight, answer your questions the best I can, and we'll 

kind of go from there. All right? 

DEFENDANT: All right. 

DETECTIVE KING: Do you like, you like to be called James or is 

there something else you like to be called? 

DEFENDANT: James, it don't matter. James, JD, you can call me 

by my first and . . . 

DETECTIVE KING: Ok JD. All right. What year did you finish in 

school? 

DEFENDANT: Uh, 2009. 

DETECTIVE KING: Um, I mean what grade? 

DEFENDANT: Um, Twelfth. 

DETECTIVE KING: The Twelfth grade? 

DEFENDANT: Yea. 

Detective King then read from a statement of rights form to Defendant. When he 

finished reading the form, Detective King asked Defendant if he understood. 

Defendant replied, "I think. Um. Only if you can't afford an attorney one will be 

appointed to represent you? Is that free or do you gotta pay for that?" Detective 

King told Defendant that if that were the case, "the courts will appoint, will get 

you an attorney." Defendant said, "All right. That's cool." Then Detective King 

asked Defendant to sign the form to show he understood the rights. 
5 

 The form was titled "Statement of Rights[.]" The form was divided into 

two sections. The upper section of the form stated as follows: 

You have the right to remain silent. 

Anything you say can and will be used against you in a court of law. 

You have the right to talk to a lawyer before making any statement 

or answering any question, and you may have him present during 

questioning. 

If you cannot afford an attorney, one will be appointed to represent 

you before any questioning if you wish. 

You can decide at any time to exercise these rights and not answer 

any questions or make any statements. 

The second section of the form included the printed line, "I have had the above 

statement of my rights read to me, and I fully understand each of them." 

Defendant signed the form indicating he understood the rights. Defendant then 

made his statement regarding his involvement in Victim's shooting. 

 At the hearing on the motion to suppress, Detective King testified 

Defendant appeared to comprehend what they were discussing at all times. 

Detective King further stated he made no threats or promises to Defendant 

during the course of the interview. 

 Defendant's attorney also questioned Detective King regarding his advice 

to Defendant on the right to remain silent. Detective King admitted the word 

"waiver" was not printed on the statement of rights form and that he did not use 

the word "waiver" in speaking with Defendant. He testified the form used is 

called a statement of rights rather than a waiver of rights. 

 After listening to the parties' arguments and allowing them time to submit 

written suggestions, the trial court denied Defendant's motion to suppress. 
6 

 "The Miranda Court formulated a warning that must be given to suspects 

before they can be subjected to custodial interrogation." Berghuis v. 

Thompkins, 560 U.S. 370, 380 (2010). In the present case there is no dispute 

Defendant was subjected to custodial interrogation, so the only issue is whether 

Defendant's decision to relinquish his right to remain silent was knowing and 

voluntary. 

 An inquiry into whether the State has demonstrated a valid 

relinquishment of the right to remain silent "has two distinct dimensions." 

Moran v. Burbine, 475 U.S. 412, 421 (1986). "First, the relinquishment of the 

right must have been voluntary in the sense that it was the product of a free and 

deliberate choice rather than intimidation, coercion, or deception." Id. The 

second requirement is that the relinquishment "must have been made with a full 

awareness of both the nature of the right being abandoned and the consequences 

of the decision to abandon it." Id. See also Thompkins, 560 U.S. at 382-83. 

 Here, the first requirement was easily demonstrated. Detective King 

testified he made no threats or promises to Defendant during the interview. 

Other than stating he would like to hear Defendant's side of the story, there was 

no intimidation or deception by Detective King or anyone else. The interview 

lasted less than an hour and there were no physically coercive tactics. Defendant's 

relinquishment of his Miranda rights was a free and deliberate choice. Thus, 

we are left with the issue of whether Defendant knowingly relinquished his right 

to remain silent.

 As to the second requirement, "[t]he main purpose of Miranda is to 

ensure that an accused is advised of and understands the right to remain silent 
7 

and the right to counsel." Thompkins, 560 U.S. at 383. "The prosecution 

therefore does not need to show that a waiver of Miranda rights was express." 

Id. at 384. For this reason, "[a]n accused's uncoerced statement after being 

given a Miranda warning establishes an implied waiver where the prosecution 

makes an additional showing that the accused understood the Miranda

warning." Pennington, 408 S.W.3d at 785. 

 In the present case, there was evidence showing Defendant relinquished 

his Miranda rights through his actions. Prior to any questioning, Detective 

King determined Defendant had graduated high school and understood the 

English language. Detective King then read the Miranda warnings from a form. 

Defendant said he understood and signed the form indicating he understood 

these rights. Defendant then began answering questions about Victim's death. 

These facts show Defendant was provided with Miranda warnings, Defendant 

understood the Miranda warnings, and Defendant made an uncoerced 

statement. Consequently, Defendant's actions resulted in a knowing 

relinquishment of his Miranda rights. See Thompkins, 560 U.S. at 383. 

 Defendant argues the evidence does not show he understood the rights 

explained to him. In support he states, "[b]efore any Miranda warnings were 

administered, Detective King made sure to tell [Defendant] that they were going 

to talk about his side of the story, as if it were a foregone conclusion, and he 

minimized the warnings as just a formality and that they would 'get his side of the 

story out there' as soon as he read them." Defendant contends the use of this 

language was a stratagem to frustrate the purpose of the Miranda warnings. 

This argument is without merit for two reasons. 
8 

 First, the argument misunderstands the nature of the knowledge required 

before a suspect may validly relinquish his right to remain silent. As the Supreme 

Court of Missouri has stated, "[t]he requirement that a waiver of rights be 

knowing and intelligent does not mean that a defendant must know and 

understand all of the possible consequences of the waiver." State v. Powell, 

798 S.W.2d 709, 713 (Mo. banc 1990). "Rather, it requires that the defendant 

understood the warnings themselves; 'that he at all times knew that he could 

stand mute and request a lawyer, and that he was aware of the State's intention to 

use his statements to secure a conviction.'" Id. (quoting Moran, 475 U.S. at 

422). Here, Defendant stated he understood the rights. 

 Second, Defendant's argument ignores the language of the warnings 

themselves. The warnings included the statement, "[y]ou can decide at any time

to exercise these rights and not answer any questions or make any statements." 

(Emphasis added). Defendant indicated he understood each of the rights. The 

content of that warning was not eviscerated by Detective King's suggestion that 

this was Defendant's opportunity to explain his side of the story. 

 Defendant also discusses Pennington in support of his conclusion that 

the procedure in this case was improper. He states the Pennington case 

disapproved the practice of "modifying and eliminating any mention of 'waiver' in 

their Miranda forms[.]" This statement misconstrues the facts and analysis in 

Pennington. 

 The court in Pennington did have a footnote stating, "We note, however, 

while not mandated, the inclusion of waiver language in the Miranda form 

would have avoided the issue faced in this case." Id. at 785 n. 6. However, the 
9 

court in Pennington actually held the statement was admissible even though 

the form lacked the waiver language. Id. at 785-86. 

 The primary thrust of Defendant's argument appears to be that there was 

no valid relinquishment of the right to remain silent because Detective King did 

not use the word "waiver" during the statement of rights or the interview and did 

not specifically ask the Defendant if he "waived" his rights. Defendant points to 

no cases, and we are unable to find any cases, which hold the interrogating officer 

must specifically ask "Do you wish to waive your right to remain silent?" in order 

for the prosecution to prove a valid relinquishment of the right to remain silent. 

Indeed, the fact that the word "waiver" was not used does not mean a waiver did 

not occur under the circumstances of this case. See Thompkins, 560 U.S. at 

382-83. 

 In sum, Defendant was given a correct statement of his Miranda rights, 

Defendant stated he understood those rights, signed a form containing those 

rights, asked a valid question regarding one of his rights and received a valid 

answer. Defendant subsequently elected to go forward and make a statement. 

Defendant knowingly relinquished those rights. The trial court did not clearly err 

denying the motion to suppress. 

Defendant's first point is denied. 

Point II: Alleged Opinion Testimony 

 In his second point, Defendant claims the trial court abused its discretion 

in "allowing Detective King to testify that he did not find any evidence that the 

shooting was done in self-defense[.]" Defendant argues this testimony was 

inadmissible because it was an opinion regarding an ultimate issue in the case. 
10 

 The following additional facts are necessary to the resolution of this claim. 

Near the end of the direct examination of Detective King, the prosecutor asked, 

"In the interview the defendant tells you that kind of like, 'It's a self-defense, I 

had to do it.' Did you find any evidence that this was done in self-defense?" 

Defendant's attorney objected, stating the answer would invade the province of 

the court, and the trial court sustained the objection. The prosecutor then 

attempted to lay a further foundation for the question, eliciting testimony that 

Detective King had training in what evidence to look for to substantiate a selfdefense claim and that Detective King had looked for such evidence in this case. 

When the prosecutor again asked if Detective King found any evidence that this 

act was committed in self-defense, Defendant did not object or make a motion to 

strike. 

 As the State correctly argues, this claim was not preserved for appellate 

review. Generally speaking, to preserve a claim of evidentiary error for appellate 

review, a party must make an objection when that testimony is admitted at trial. 

State v. Cochran, 365 S.W.3d 628, 632-33 (Mo. App. W.D. 2012). Here, while 

Defendant objected the first time the prosecutor asked Detective King about 

evidence of self-defense, Defendant did not object when Detective King 

ultimately gave his testimony on the matter. As there was no contemporaneous 

objection, Defendant's claim regarding this evidence is not preserved for review. 

See State v. McWhorter, 240 S.W.3d 761, 763 (Mo. App. S.D. 2007) (holding 

that a pretrial objection alone did not preserve a claim for appellate review). 
11 

 Defendant has not requested review for plain error under Rule 30.20,2

which gives this Court discretion to review unpreserved claims of trial court error 

for plain error resulting in manifest injustice or a miscarriage of justice. An 

appellate court has complete discretion in determining whether to engage in 

plain error review. State v. Edwards, 280 S.W.3d 184, 188 (Mo. App. E.D. 

2009). Plain error review should be used sparingly and does not justify a review 

of every error that has not been preserved for appellate review. Id. We decline 

to engage in such review here. See id.; State v. Ficke, 892 S.W.2d 814, 818 

(Mo. App. S.D. 1995). 

 Defendant's second point is denied. 

Point III: Alleged Improper Closing Argument 

 In his final point on appeal, Defendant argues the trial court plainly erred 

in allowing the prosecutor to discuss the facts of reported cases during the State's 

closing argument. This argument is without merit because it fails to take into 

account the difference between a jury trial and a bench trial. 

 Defendant claims this argument was an improper discussion of facts 

outside the record, and each of the cases he cites in support involved an alleged 

argument of facts outside the record to a jury. Here, however, the argument is 

more properly characterized as an argument of law, and it was made to a judge 

sitting without a jury. Defendant cites no cases supporting the proposition that it 

is error for a trial judge to listen to closing arguments from a lawyer in a bench 

trial based on what the lawyer believes the governing law to be. Thus, we find 

that Defendant has failed to demonstrate any error, plain or otherwise. 

 

2 All rule references are to Missouri Court Rules (2013). 
12 

 Defendant's third point is denied. 

Decision

 The trial court's judgment is affirmed. 

MARY W. SHEFFIELD, J. - OPINION AUTHOR 

GARY W. LYNCH, J. - CONCURS 

DON E. BURRELL, J. - CONCURS