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 convic tions after a bench trial for first-degree murder and armed criminal ac tion. See §§ 565.020, 571.015, RSMo (2000). Defendant presents three points on app eal: (1) the trial court clearly erred in admitting Defendant's confession i nto evidence; (2) the trial court abused its discretion in allowing a detective to te stify 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 ar guments are without merit, and we affirm the trial court's judgment.

Factual and Procedural Background On March 21, 2010, Defendant shot Kody Ray ("Victi m") 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-t hrough shot" just behind his ear. Ultimately, investigators developed Defendant as a suspect in the shooting, and Victim's uncle identified Defendant in a photograph ic line up. On March 25, 2010, police officers arrested Defend ant as he left his parents' home. Defendant was transported to the po lice station to be interviewed by Detective Todd King ("Detective King"). Once at the station Defendant was taken to an interview room. Detective King read De fendant his Miranda 1 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. Defenda nt and his friend decided Defendant would be the one to confront Victim becau se Defendant was the only one of their group who had a gun. Defendant claime d he did not try to kill Victim, but he thought Victim was going to pull a g un on him. Defendant was charged with first-degree murder and armed criminal action. Defendant filed a motion to suppress the s tatement he made to Detective King, alleging, among other things, that his relinq uishment of his Miranda rights was not knowing and voluntary. The trial co urt denied the motion after a hearing. Defendant then waived his right to a tria l by jury and received a bench trial. The trial court found Defendant guilty as c harged 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 cou rt clearly erred in denying his motion to suppress the statement he made to Det ective King because Defendant's relinquishment of his right to remain s ilent was rendered unknowing and involuntary by statements made by Detective Kin g during the Miranda warning. This argument is without merit. When a criminal defendant files a motion to suppre ss, 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 decisio n regarding a motion to suppress is for clear error which will be found when the app ellate court is left "with a definite and firm impression that a mistake was mad e." 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 o ur review, we consider the records of both the suppression hearing and the tri al, 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 fac ts surrounding Defendant's statement to Detective King were adduce d 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 late r, Detective King entered the room and removed Defendant's handcuffs. The followi ng 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 p eople telling us things and I think you probably need to get your si de 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 fr om 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 dow n 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 Def endant 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, "th e courts will appoint, will get you an attorney." Defendant said, "All right. Tha t's cool." Then Detective King asked Defendant to sign the form to show he underst ood the rights.5

The form was titled "Statement of Rights[.]" The f orm 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 i n a court of law. You have the right to talk to a lawyer before makin g any statement or answering any question, and you may have him pre sent during questioning. If you cannot afford an attorney, one will be appoi nted 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 unde rstand each of them." Defendant signed the form indicating he understood the rights. Defendant then made his statement regarding his involvement in Vic tim's shooting. At the hearing on the motion to suppress, Detectiv e King testified Defendant appeared to comprehend what they were dis cussing 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 Kin g regarding his advice to Defendant on the right to remain silent. Detect ive 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 t estified the form used is called a statement of rights rather than a waiver o f rights. After listening to the parties' arguments and allo wing them time to submit written suggestions, the trial court denied Defenda nt's motion to suppress.6

"The Miranda Court formulated a warning that must be given to s uspects before they can be subjected to custodial interroga tion." Berghuis v. Thompkins , 560 U.S. 370, 380 (2010). In the present case the re is no dispute Defendant was subjected to custodial interrogation, so the only issue is whether Defendant's decision to relinquish his right to rem ain silent was knowing and voluntary. An inquiry into whether the State has demonstrated a valid relinquishment of the right to remain silent "has t wo distinct dimensions." Moran v. Burbine , 475 U.S. 412, 421 (1986). "First, the relinquishm ent of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercio n, 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 aba ndoned 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 demonstrate d. Detective King testified he made no threats or promises to Defenda nt 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 a nyone else. The interview lasted less than an hour and there were no physical ly 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 kno wingly 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 understand s the right to remain silent7

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 uncoerce d statement after being given a Miranda warning establishes an implied waiver where the pr osecution 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 De fendant relinquished his Miranda rights through his actions. Prior to any question ing, 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 in dicating he understood these rights. Defendant then began answering quest ions 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 resul ted in a knowing relinquishment of his Miranda rights. See Thompkins , 560 U.S. at 383. Defendant argues the evidence does not show he und erstood the rights explained to him. In support he states, "[b]efore any Miranda warnings were administered, Detective King made sure to tell [Def endant] 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." Defenda nt contends the use of this language was a stratagem to frustrate the purpose o f the Miranda warnings. This argument is without merit for two reasons.8

First, the argument misunderstands the nature of t he knowledge required before a suspect may validly relinquish his right t o remain silent. As the Supreme Court of Missouri has stated, "[t]he requirement th at a waiver of rights be knowing and intelligent does not mean that a defend ant 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 re quires 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 aw are 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 rig hts. Second, Defendant's argument ignores the language o f the warnings themselves. The warnings included the statement, " [y]ou can decide at any time to exercise these rights and not answer any questio ns or make any statements." (Emphasis added). Defendant indicated he understoo d each of the rights. The content of that warning was not eviscerated by Dete ctive King's suggestion that this was Defendant's opportunity to explain his sid e 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 eliminat ing any mention of 'waiver' in their Miranda forms[.]" This statement misconstrues the facts a nd analysis in Pennington

. The court in Pennington did have a footnote stating, "We note, however, while not mandated, the inclusion of waiver languag e in the Miranda form would have avoided the issue faced in this case." Id. at 785 n. 6. However, the9

court in Pennington actually held the statement was admissible even th ough 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 sile nt because Detective King did not use the word "waiver" during the statement of r ights or the interview and did not specifically ask the Defendant if he "waived" h is rights. Defendant points to no cases, and we are unable to find any cases, whic h hold the interrogating officer must specifically ask "Do you wish to waive your ri ght 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 use d 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 forwa rd 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 co urt 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 ar gues this testimony was inadmissible because it was an opinion regarding an ultimate issue in the case.10

The following additional facts are necessary to th e 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 w ould invade the province of the court, and the trial court sustained the object ion. The prosecutor then attempted to lay a further foundation for the quest ion, eliciting testimony that Detective King had training in what evidence to loo k for to substantiate a selfdefense claim and that Detective King had looked fo r such evidence in this case. When the prosecutor again asked if Detective King f ound any evidence that this act was committed in self-defense, Defendant did no t object or make a motion to strike. As the State correctly argues, this claim was not p reserved for appellate review. Generally speaking, to preserve a claim of evidentiary error for appellate review, a party must make an objection when that te stimony 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 as ked Detective King about evidence of self-defense, Defendant did not object when Detective King ultimately gave his testimony on the matter. As th ere was no contemporaneous objection, Defendant's claim regarding this evidenc e 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 unprese rved claims of trial court error for plain error resulting in manifest injustice or a miscarriage of justice. An appellate court has complete discretion in determin ing 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 appe llate 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 b ecause it fails to take into account the difference between a jury trial and a b ench trial. Defendant claims this argument was an improper dis cussion 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. He re, 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 s upporting the proposition that it is error for a trial judge to listen to closing arg uments from a lawyer in a bench trial based on what the lawyer believes the governi ng 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 (2 013).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