In the Missouri Court of Appeals 

Eastern District

DIVISION FIVE

REBECCA L. HARRIS, ) No. ED100751

)

Petitioner/Appellant, ) Appeal from the Circuit Court of the

 ) St. Charles County

vs. )

) Honorable Daniel G. Pelikan

JAMES PRESSON, )

)

Respondent. ) Filed: October 7, 2014

I. INTRODUCTION

Plaintiff Rebecca Harris appeals the judgment of the Circuit Court of St. Charles County 

dismissing her negligence claim against defendant James Presson. On appeal, Harris argues that 

the trial court erred, because Presson‟s violation of her right to counsel under the Fifth 

Amendment of the United States Constitution supports a common-law negligence claim against 

him. We affirm the trial court‟s judgment. 

II. FACTS

On November 29, 2007, Harris was arrested in connection with the grievous injury of a 

four-month-old infant for whom she had been an in-home nanny. Under interrogation by 

Presson, who was then a detective with the St. Peters, Mo., police department, Harris confessed 

to harming the infant. This confession was subsequently admitted at trial and Harris was 

convicted by jury of Assault in the Second Degree, § 565.060, R.S.Mo. (2000).
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On appeal, this Court reversed Harris‟s conviction, because Presson obtained the 

confession in violation of Harris‟s Fifth Amendment right to counsel. See State v. Harris, 305 

S.W.3d 482, 490 (Mo. App. E.D. 2010). Thereafter, with full knowledge that her improperly 

obtained confession could not be used in a new trial, Harris pleaded guilty to Assault in the 

Second Degree pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). The trial court 

sentenced Harris to time served, which amounted to 550 days imprisonment.

On June 4, 2013, Harris filed the instant lawsuit alleging that Presson‟s negligent 

violation of her right to counsel caused her to be imprisoned. She requested $550,000 in 

damages. The trial court dismissed her claim for failure to state a claim. This appeal follows. 

III. STANDARD OF REVIEW

“Our review of a dismissal for failure to state a claim is de novo.” Chochorowski v. Home 

Depot U.S.A., Inc., 295 S.W.3d 194, 197 (Mo. App. E.D. 2009). “A motion to dismiss for failure 

to state a claim . . . is solely a test of the adequacy of the petition.” Id. “This Court does not 

attempt to weigh whether the alleged facts are credible or persuasive.” Armistead v. A.L.W. Grp., 

155 S.W.3d 814, 816 (Mo. App. E.D. 2005). Rather, “we accept all properly pleaded facts as 

true, giving the pleadings their broadest intendment, and we construe all allegations favorably to 

the pleader . . . . „to determine if the facts alleged meet the elements of a recognized cause of 

action, or of a cause that might be adopted in that case.‟” Id. (quoting Nazeri v. Mo.Valley Coll., 

860 S.W.2d 303, 306 (Mo. banc 1993)).

IV. DISCUSSION

In her sole point on appeal, Harris contends that the trial court erred by dismissing her 

claim, because Presson‟s violation of her right to counsel under the Fifth Amendment of the 

United States Constitution supports a common-law negligence claim against him. Specifically, 
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Harris argues that Presson violated a departmentally-mandated duty to cease questioning her 

when she invoked her right to counsel, and that this breach was the proximate cause of the 

“extreme mental and emotional distress” she suffered in prison. In response, Presson argues that 

he owed no duty to Harris under the Fifth Amendment, and that even if he did owe a duty, he is 

shielded from liability by the doctrine of official immunity.

At the outset, we note that we need not resolve the issue of whether Presson owed a duty 

to Harris that is actionable in tort. Instead, as a matter of law, this appeal may be resolved on the 

issue of official immunity. Official immunity “connotes not only immunity from judgment but 

also immunity from suit.” State ex rel. Mo. Dep’t of Agric. v. McHenry, 687 S.W.2d 178, 181 

(Mo. banc 1985). If official immunity applies, Harris‟s suit is barred, regardless of whether 

Presson owed her a duty. 

The doctrine of official immunity “protects public employees from liability for alleged 

acts of negligence committed during the course of their official duties for the performance of 

discretionary acts.” Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008).

“This doctrine was established to protect officers from second-guessing based on hindsight.” 

Blue v. Harrah’s N. Kansas City, L.L.C., 170 S.W.3d 466, 479 (Mo. App. W.D. 2005). “The 

official immunity doctrine, however, does not provide public employees immunity for torts 

committed when acting in a ministerial capacity.” Southers, 263 S.W.3d at 610. 

“Whether an act can be characterized as [ministerial or] discretionary depends on the 

degree of reason and judgment required.” Id. “A discretionary act requires the exercise of reason 

in the adaptation of means to an end and discretion in determining how or whether an act should 

be done or course pursued.” Id. “A ministerial function, in contrast, is one „of a clerical nature 

which a public officer is required to perform upon a given state of facts, in a prescribed manner, 
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in obedience to the mandate of legal authority, without regard to his own judgment or opinion 

concerning the propriety of the act to be performed.‟” Id. (quoting Kanagawa v. State ex rel. 

Freeman, 685 S.W.2d 831, 836 (Mo. banc 1985)) “The determination of whether an act is 

discretionary or ministerial is made on a case-by-case basis, considering: (1) the nature of the 

public employee‟s duties; (2) the extent to which the act involves policymaking or exercise of 

professional judgment; and (3) the consequences of not applying official immunity.” Id.

Here, Presson‟s interrogation of Harris—including his allegedly negligent failure to cease 

questioning her when she invoked her right to counsel—was a discretionary act performed in the 

course of Presson‟s official duties. Presson‟s interrogation of Harris required him to rely on 

reason and judgment in assessing whether Harris‟s statements were sufficiently unequivocal to

invoke her right to counsel, because a suspect is almost never so clear as to say: “I invoke my 

Fifth Amendment right to counsel, including my right to cease answering questions until I have 

my lawyer present to represent me.” Cf. Harris, 305 S.W.3d at 485 (“To invoke a right to 

counsel pursuant to the Fifth Amendment, one must make an unambiguous, unequivocal and 

specific request for counsel.”). Instead, an officer must determine for herself—in light of the 

often imprecise nature of conversational speech—if and when she should cease her questioning.

A comparison of cases in which the court held that the suspect‟s statement to police was 

sufficient to invoke the right to counsel, with cases in which the court held the suspect‟s 

statement was insufficient, illustrates the judgment required of an officer in determining whether 

to terminate an interrogation. For example, the court held in the following cases that the officer 

erred in determining the suspect failed to invoke the right to counsel. See Smith v. Illinois, 469 

U.S. 91, 93 (1984) (where suspect stated, “Uh, yeah. I‟d like to do that”); State v. Olds, 569 

S.W.2d 745, 748-49 (Mo. banc 1978) (where suspect stated, “[I] would like to contact [my] 
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lawyer”); State v. Gibson, 623 S.W.2d 93, 96 (Mo. App. W.D. 1981) (where suspect stated, “[I] 

ought to get a lawyer,” and “I think I need an attorney”). Yet in the cases following, the court 

held that the officer was correct that the suspect‟s statement was inadequate. See State v. 

Bucklew, 973 S.W.2d 83, 90 (Mo. banc 1998) (where suspect stated, “Well do you think I should 

have an attorney present?” and “How fast could you get an attorney here?”); State v. Scott, 943 

S.W.2d 730, 740 (Mo. App. W.D. 1997) (where suspect stated, “Yeah, can you get me [a 

lawyer],” and then stated, “I'll wait . . . .,” and then, “Let‟s continue”); State v. Jones, 914 

S.W.2d 852, 860 (Mo. App. E.D. 1996) (where suspect stated, “Do I need an attorney?”); and 

State v. Wilkinson, 861 S.W.2d 746, 749 (Mo. App. S.D. 1993) (where suspect stated, “Could I 

call my lawyer?”). The distinction between these two groups of cases is not so plain as to suggest 

that an officer‟s decision to cease questioning is merely rote or mechanical. Rather, the officer 

must exercise “discretion in determining how or whether [the interrogation] should be done.” 

Southers, 263 S.W.3d at 610. 

Moreover, the discretionary nature of police conduct during an interrogation is illustrated 

by the legal standard courts use to review whether a suspect invoked her right to counsel. The 

court asks if the “accused . . . articulate[d] his or her desire to have counsel present sufficiently 

clearly that a reasonable police officer, in the circumstances, would understand the statement to 

be a request for an attorney.” Harris, 305 S.W.3d at 485 (emphasis added). This standard does 

not ask whether an officer “stopped” when the law said “Stop!” See, e.g., Harris v. Munoz, 43 

S.W.3d 384, 389 (Mo. App. W.D. 2001) (holding that prison official‟s failure to follow 

department policy on handling of non-contraband inmate property, which resulted in the loss of 

prisoner‟s tape player and headphones, was violation of ministerial duty that required no 

expertise or judgment). Rather, this standard looks to whether the officer‟s judgment regarding 
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the import of a particular suspect‟s statement was reasonable under the particular circumstances 

existent at the time.

Finally, a holding that a police officer‟s duty to cease questioning a suspect when she 

invokes her right to counsel is ministerial would have unworkable consequences. It would give 

officers cause to fear personal liability for negligence each and every time they question a 

suspect in the course of a legitimate investigation of a crime. An interrogating officer would 

shrink from the vigorous pursuit of the truth, because misunderstanding a suspect‟s request for 

counsel—no matter how earnest the error—could be financially ruinous for herself and her

dependents. We believe the existent remedy of suppressing evidence of self-incrimination 

obtained in violation of a suspect‟s Fifth Amendment rights is adequate both to deter improper 

police conduct and to safeguard the liberties of the accused. Cf. Hannon v. Sanner, 441 F.3d 635, 

637 (8th Cir. 2006) (explaining duty of officer to cease questioning upon suspect‟s request for 

counsel “is a procedural safeguard . . . [and] the remedy for . . . violation is the exclusion from 

evidence of any compelled self-incrimination” (quoting Warren v. City of Lincoln, 864 F.2d 

1436, 1442 (8th Cir. 1989) (en banc))). 

Presson‟s interrogation of Harris—including his allegedly negligent failure to cease 

questioning her when she invoked her right to counsel—was a discretionary act performed in the 

course of Presson‟s official duties. Harris‟s suit is therefore barred, as a matter of law, by the 

doctrine of official immunity. 

V. CONCLUSION

For the foregoing reasons, we affirm the trial court‟s judgment. 

______________________________

Lisa S. Van Amburg, Judge

Angela T. Quigless, C.J., and 

Kurt S. Odenwald, J., concur.