Rebecca L. Harris v. James Presson

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).
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.
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