author: BARDGETT, Judge. DONNELLY, Judge,

text:
    Russell Lee BRYANT, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 60076.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.
    Rehearing Denied April 10, 1978.

      William G. Mays, II, Columbia, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Prank J. Murphy, Asst. Attys. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

Russell Lee Bryant filed a motion under Rule 27.26 to vacate the judgment and twenty-five-year sentence imposed upon him following his plea of guilty to rape. The circuit court overruled the motion and Bryant appealed to the Missouri court of appeals, Kansas City district. The court of appeals reversed the circuit court judgment and thereafter this court sustained respondent’s motion to transfer filed under art. V, sec. 10, Mo.Const., as amended 1970.

The question of general interest or importance in this case is whether the trial court is required to, sua sponte, hold an evidentia-ry hearing on a defendant’s mental competence to proceed to trial whenever a psychiatric report indicates the defendant is suffering from a mental disease or defect under sec. 552.010, RSMo 1969, even though the report also states that the defendant understands the nature of the charges against him and he is able to cooperate with counsel in his own defense.

In Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966), the Court said, “A determination of these claims [the duty to hold a hearing re mental competence to proceed] necessitates a detailed discussion of the conduct of the trial and the evidence touching upon the question of Robinson’s competence at that time [at trial].”

The allegations of movant necessitate the following detailed discussion of the proceedings before the circuit court which led to movant’s conviction and imprisonment.

Movant Bryant had been charged in a two-count indictment with kidnapping and forcible rape in the circuit court of Boone county. The crimes were alleged to have occurred on August 30, 1973. Counsel was appointed and a psychiatric examination of movant was ordered by the circuit court pursuant to chapter 552 and was performed by a Dr. Philip Marco who rendered a report on January 10, 1974, and a supplementary report on February 21, 1974. The report dated January 10, 1974, stated in part:

“Course in Hospital: He adjusted well to the ward and interacted well with the other patients. He was elected president in a patient/staff meeting and functioned well. He is making plans to complete high school at Hickman High School. He was discharged December 19, 1973.
Diagnosis: 1. Hysterical personality — moderately severe
2. Hysterical neurosis, dissociative type — severe
3. Marital maladjustment— moderately severe
4. Anemia secondary to folate deficiency
5. Reactive hypoglycemia — mild
Discussion:
1. Russell was informed about hypnosis being of help in recalling difficult emotional experiences that were either forgotten or were difficult to recollect and he agreed to participate in this treatment, however because of stormy weather and scheduling time around his job, four appointments have been cancelled. I would like to complete my evaluation if it would please the court, for this examining period to be extended another two or three weeks so that I may explore the hypnotherapy the amnestic periods that Russell exhibits concerning the events at issue.
2. Russell Bryant is aware of the nature of the charges against him, his part in the proceedings in the court and he is able to cooperate with his counsel in his own defense, therefore in my opinion, he is competent to stand trial.
3. Hysterical personality and hysterical neurosis — dissociative type are considered a mental disease or illness in the Diagnostic and Statistical Manual of Mental Disorders of The American Psychiatric Association and fulfill the definition of 552.010 RSMo. He had manifestations of this illness during hospitalization in March 1973 in Anchorage, Alaska.
4. It is extremely difficult to give an opinion as to whether at the time of the alleged criminal conduct the accused, Russell Bryant, did not know or appreciate the nature, quality or wrongfulness of his conduct or as a result of mental disease was incapable of conforming his conduct to the requirements of law. I can state that to the best of my knowledge Bryant does not exhibit any impairment of his cognitive faculties except that at times he exhibits poor judgement but there is no apparent impairment of perception, there is a question concerning his memory functioning. It can be posited that under severe emotional stress Russell may have difficulty in immediate recall and have amnestic states as a result of his dissociative reaction.
5.It is recommended that since Bryant does not pose a dangerous threat to the community that he be allowed to enroll in high school and graduate and maintain his job and that he be placed under probationary supervision. Individual or group psychotherapy, especially including his wife, would be very helpful to help him develop insight for a better self image of himself and a better masculine identification.” (Emphasis supplied.)

The February 21,1974, supplementary report of Dr. Marco stated movant had been seen again on January 24, 28, February 8 and 11, 1974, and further stated:

“As to the issue of criminal responsibility, I refer to the report of January 10, 1974, paragraphs 3 and 4 in The Discussion. Again it is difficult to be firm that at the time of the alleged act, the accused, Russell Bryant, did not know or appreciate the nature, quality or wrongfulness of his conduct nor can I recommend that as a result of mental disease he was incapable of conforming his conduct to the requirements of the law. To the best of my knowledge Bryant does not exhibit impairment of his cognitive faculties, except that at times he exhibits poor judgement and poor memory. Under severe emotional stress, he may have difficulty in immediate recall and have amnestic states as a result of his dissociative reaction.
Further, in spite of history of ‘passing out’ on several occasions and the suggestion of ‘post ictal’ state, no organic evidence was found to substantiate impairment of cognitive faculties at the time of arrest and the subsequent voluntary act of giving up his rights. Although it appears that Mr. Bryant voluntarily confessed, I am struck by the enormity of his response to fear and the subsequent difficulty he has in talking to me about the events and the mental mechanisms of denial and suppression that are presently operating.” (Emphasis supplied.)

On February 25, 1974, movant and his attorney appeared in court. Movant withdrew his previous plea of not guilty and entered a plea of guilty to count two, rape. Count one, kidnapping, was subsequently dismissed. In connection with the guilty plea, the circuit court interrogated movant at length. Most of the dialogue between the court and movant consisted of the court informing movant of his various rights and asking him if he understands what he has been told or if the court’s statement as to a matter is correct, to which the movant’s replies usually consisted of “Yes, your Hon- or.” When asked to recite the events of August 30, movant replied that he did not remember. He said the last thing he recalled that day was leaving home about 8 p. m. in his car with Ernie Baker and John Gallup and going to a street dance in Columbia and drinking, presumably intoxicants. He next recollected being at home about 1:80 or 2 a. m. the next day and going to work. He could not recall giving a statement to the Columbia police. The court discussed his amnesia with him and movant acknowledged that he understood that if he desired to raise mental disease or defect as a defense he would have to plead it and he declined to do so. The court asked him to state why he should enter a plea of guilty to the charge of rape since he had no recollection of the matter, and the movant stated: “Well, Your Honor, for one thing, it was my car, I did leave the house with the two guys and I don’t know where I was, don’t remember, it’s her word against mine so in her case her is stronger than mine.”

The court requested the prosecutor to state the facts and told movant to pay attention. The prosecutor then read a statement taken from movant. It included date and place of birth, home address, marital status, and that he had a seven-month-old son; type, color and year of the car he owned; that he left in the car with the two people named supra, and that they were going rabbit hunting. The court then asked movant about these matters and he acknowledged that each item was correct. The details of the rape were read from the statement and additional testimony was outlined by the prosecutor. Movant acknowledged he understood the state would prove the stated facts. His appointed counsel was also questioned. The prosecutor recommended a sentence of twenty-five years and the defense attorney requested a presentence investigation. The judge again asked movant if he still desired to plead guilty and movant said yes. Presentence investigation was ordered and the cause laid over.

On June 3, 1974, the parties and attorneys again appeared in court for the purpose of finally disposing of the case. Defense counsel reviewed movant’s life and the crime in detail pointing out certain mitigating factors and asked the court to consider movant for a probation hearing. The court then imposed a sentence of twenty-five years and set a probation evidentiary hearing for June 6, 1974.

On June 6, 1974, the parties and attorneys again appeared in court. Dr. Philip Marco, the psychiatrist who previously examined movant, appeared and testified. He first saw movant in November 1973 for the purpose of examining him for competency to stand trial and for criminal responsibility. Movant was an in-patient at Missouri University Service Psychiatric Division from about November 17 to about December 19,1973. The doctor examined him for about seven hours initially and then again for about another five hours. The doctor’s testimony conformed to his earlier reports. He testified that his diagnosis as to defendant’s psychological characteristics had been hysterical personality and hysterical neurosis. He was asked about these diagnoses and testified as follows:

'A. That was hysterical personality and hysterical neurosis.
Q. What is hysterical personality?
A. That’s attendant on a deeply ingrained pattern disturbance in which an individual shows emotional liability, that is difficult in maintaining emotional stability, with attendant self-serving mechanisms and showing defense mechanisms that were inefficient in his endeavor or attempts to handle anxiety. We feel it’s a rather inefficient, a rather unsophisticated method of handling ordinary stresses that people meet in the course of a day. This in brief is the sum of what a hysterical personality is.
Q. The other?
A. Hysterical neurosis in which certain symptoms of disorganizing to the personality such as amnesias, amnestic states can occur, and we' had examined Russell for how serious amnestic states were in him. He did show us some difficulty in recalling important events and this was one of the reasons why we asked for an extension of his examination.
Q. Now, as a result of your examination did you reach a diagnosis as to his social characteristics?
A. Yes, we did, sir.
Q. What was that?
A. We found Russell to be rather immature, withdrawn, had difficulty with some authority figures, although he was rather passive and went along with forceful suggestion. He had some difficulty making appropriate interpersonal relationships with women, and we were of the impression that he was. a rather easily led and a rather passive dependent person when he related to other individuals in his immediate environment. He was a likeable young man in the ward; he [has] made fairly good friends, although they weren’t close friends. There was some distance between, and a rather immature approach to some of these friends, but they did appoint him to be president of the patient government during his stay at the Medical Center In-Patient Service.”

Additionally, a twenty-one-year-old girl, and the husband and wife who owned the restaurant where movant had been employed testified on movant’s behalf. The girl testified that she had known movant since March 8, 1974. Both worked at the restaurant and were good friends. The ten- or of her testimony was that he conducted himself normally during the time she knew him. The husband and wife testified that movant came to work for them as a dishwasher in December 1973 or early 1974 and shortly thereafter he became a cook. The tenor of their testimony was that movant was a very good employee, helped out anywhere he was needed, and did so on his own initiative. He was trusted with money; and if movant were available to continue working they would promote him to supervisor in the kitchen. Movant mixed well with customers and other employees and everybody liked him.

Movant contends his evidence on this 27.26 motion showed that the guilty plea was received at a time when a bona fide doubt existed as to his mental competency to proceed and, therefore, the court erred in not, sua sponte, holding a hearing before proceeding to take the plea of guilty. The legal authority movant principally relies upon is Pate v. Robinson, supra. There the court held that when the circumstances create a bona fide doubt as to whether the accused is mentally competent to stand trial the court must hold a hearing and decide that question. Under Missouri statutory law, a person is not competent to proceed if he, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist in his own defense. Sec. 552.020, RSMo Supp.1975.

The factual basis for movant’s claim that a bona fide doubt as to competency to proceed existed is primarily that part of the psychiatric examination reports of Dr. Marco which diagnosed movant’s condition, inter alia, as (1) hysterical personality — moderately severe and (2) hysterical neurosis— dissociative type severe. What this particular diagnosis may mean would, perhaps, be left in doubt except for the fact that the report itself belies any inference that the movant, at the time of the examination, was suffering under any mental disability affecting his appreciation of the charges against him. The report stated, “I can state that to the best of my knowledge Bryant does not exhibit any impairment of his cognitive faculties except that at times he exhibits poor judgement but there is no apparent impairment of perception, there is a question concerning his memory functioning. . . . ” Other quotations from the reports of Dr. Marco appearing supra further support the conclusion that there was no reason to believe movant was not mentally competent to proceed.

Sec. 552.020, subsec. 3(3), RSMo Supp. 1975, requires that the report of the psychiatric examination contain an opinion as to whether the defendant is competent to proceed. The report of Dr. Marco in the instant case contained such an opinion as follows: “2. Russell Bryant is aware of the nature of the charges against him, his part in the proceedings in the court and he is able to cooperate with his counsel in his own defense, therefore in my opinion, he is competent to stand trial.”

Sec. 552.020, subsec. 6, provides that if neither the state, the accused, nor the accused’s counsel contest the opinion referred to above, the court may make a determination and finding of record on the basis of the report filed or may hold a hearing on its own motion. It further provides that if any such opinion is contested the court shall hold a hearing on the issue. In the instant case, the opinion was not contested and, therefore, a hearing was not mandated by this statute. The circuit court in its findings of fact and conclusions of law in the instant 27.26 proceeding stated that it had previously found that movant was, in fact, competent to proceed on the basis of the uncontroverted opinion of Dr. Marco. The court further found that there was no independent bona fide doubt as to movant’s competence to proceed.

Throughout these three court appearances, there is no suggestion by anyone that Bryant did not understand the proceedings nor is there any testimony, statement, or conduct on movant’s part that would tend to indicate that such was the case. At the June 6,1974, hearing, Dr. Marco testified at length concerning the movant, the purpose of which was to persuade the court to place movant on probation. The doctor’s testimony in no way indicates any incapacity of the movant to understand the proceedings and to cooperate with counsel. To the contrary, the testimony shows the opposite as does the movant’s responses to the court’s inquiries as shown in the record. Although this testimony came after the plea of guilty was accepted and punishment assessed, it was still during the time the trial court had control of the case. Even though the June 6 evidentiary hearing was not for the specific purpose of determining competency, it afforded the movant a full and complete opportunity to bring forth any evidence and make any contention that he was unable to understand the proceedings or cooperate in his own defense.

Movant testified at the 27.26 evidentiary hearing. The motion alleged, inter alia, that he was not competent at the time he pled guilty and that he was then under the influence of certain drugs. He testified he had taken about fifteen Dilantins the morning of the guilty plea proceedings; that they made him dizzy; the proceedings did not matter to him as he just wanted to get them over with; he was kind of floating and his mind was just blank. He testified he did not recall being asked some of the questions during the plea proceedings and did recall others. One of his allegations was that he has been denied effective assistance of counsel. In connection with this allegation he testified that prior to his guilty plea he visited his court-appointed attorney quite a few times. His attorney “said there was nothing he could do, he said that he had seen what the Baker boy got and Gallup boy, and he said there’s no way he can beat the case, that the only thing left to do is try for probation or a lesser sentence.” Movant stated he requested his lawyer to file a mental defense, that he was incompetent to stand trial but that the lawyer said, “He didn’t say anything at all, he said was — there was no use, he couldn’t beat the case. He said — and as far as my mental problem, he said they would probably dismiss it any way. Q. [by public defender] Did he [court-appointed attorney at guilty plea proceedings] or did he not show you a report that Dr. Marco had filed with the Court?” Movant testified he had requested his lawyer to obtain records of his hospitalization in Anchorage, Alaska, and the lawyer said he obtained them but mov-ant didn’t see the records. Movant recalled specifically asking the lawyer to investigate the background of the complaining female witness but the attorney again told him it would be a waste of time. Movant stated he told his attorney he wanted a trial on the rape charge to which his attorney replied that from what he had seen of the case there was no way he could go to a courtroom and try to beat the case, again referring to the results of the Baker and Gallup trials. The attorney said a plea of guilty was the “only way”; that movant would probably get probation or maybe two years or, if not, he “might get as much as Bill and them, or life.”

Movant said he had a conversation with his attorney on the day he pled guilty prior to going to court. His attorney told him the decision reference pleading guilty was movant’s decision. Movant was asked what his attorney said to him at that time about his case and the record shows the following:

“A He said that maybe the Judge would give me probation, or a less sentence than the Baker boys had got.
Q Did you understand what he meant’ by that?
A No, sir.
Q Did you ask him the question?
A Yes, sir, I asked him, in other words you mean I’m going to into the courtroom and enter a plea of guilty to something I don’t even know whether I did and I’m taking a chance of getting probation or life in prison, he said I’m sure you won’t get life, but you won’t get as much as the Baker boys got.
Q What did you say to that?
A I didn’t know what to say.
Q You understand what he was telling you as far as what the situation was?
A Yes, sir.”

Movant’s attorney also testified. Without setting forth all of his testimony, suffice it to say that the attorney testified movant gave no indication that he did not understand the proceedings nor any indication he could not cooperate in his own defense.

Aside from movant’s testimony as to taking Dilantin on the day of the guilty plea, there was no evidence whatever that appellant was not competent to proceed or that he didn’t understand what was going on. The testimony given by movant in support of his allegation of inadequate counsel in which he was critical of specific actions or no action by his attorney prior to the guilty plea clearly demonstrates movant knew precisely what was happening and, by his alleged requests and inquiries, knew exactly what was going on and was assisting in his own defense and interests.

The trial court found that movant was not under the influence of drugs when he pled guilty; that his appointed counsel was willing to try the case; that movant was not denied effective assistance of counsel; that there was nothing to indicate a hearing was needed as to his competency to proceed; nor was there any bona fide doubt raised with respect to that matter; and that movant was competent to proceed.

The trial court’s findings, conclusions, and order denying relief on the 27.26 motion are all supported by the evidentiary record of the three appearances in court in February and June of 1974 in connection with the guilty plea proceedings and the evidentiary hearing on the 27.26 motion and are not “clearly erroneous” unless that result obtains simply because the psychiatric report showed a diagnosis of hysterical personality — moderately severe and hysterical neurosis — dissociative type — severe.

Movant argues that because these mental diseases or defects are within the definition of mental disease or defect found in sec. 552.010, supra, that a bona fide doubt as to competency to proceed come into being. This definition, in effect, includes all mental conditions except those specifically excluded, but there is no official listing of the various types of defects, conditions, or diseases that are included. The “bona fide” doubt spoken of in Pate v. Robinson, supra, does not relate to a question as to the mere existence of some mental disease or defect, but assuming the existence of a mental abnormality, it relates to whether there is a bona fide doubt as to the defendant’s competence to proceed.

Briggs v. State, 509 S.W.2d 154 (Mo.App.1974), cited by movant, was a habeas corpus seeking the release of Briggs from incarceration in the Fulton state hospital which resulted from the acceptance of a plea of not guilty by reason of mental defect or disease to a charge of burglary and stealing. Briggs had undergone a mental examination at the request of his appointed counsel to determine (1) “ ‘if he was competent to stand trial’ ” and (2) “ ‘if he had been suffering from a mental disease or defect at the time the offense occurred.’ ” 509 S.W.2d at 155.

In Briggs, the findings of the psychiatric examination prepared pursuant to sec. 552.-020 were as follows (509 S.W.2d at 155):

“1] That the accused has a mental disease or defect within the meaning of Sec""■■-'tion 552.010, which existed at the time of the alleged offense.
2] That the accused has the capacity to understand the proceedings against him and can assist in his own defense.
3] That the accused, as a result of mental disease or defect, did not know or appreciate the nature, quality or wrongfulness of his alleged conduct and was incapable of conforming his conduct to the requirements of the law.
4]That the accused requires psychiatric hospitalization pending further proceedings.”

Following the filing of the results of the psychiatric examination, the cause was set for trial. However, prior to the trial date, petitioner’s counsel filed a “Notice of Intention to Plead Not Guilty By Reason of Insanity.” Shortly thereafter the prosecutor “accepted” this notice without the written notice that Briggs had no other defenses to the charged offenses as required by sec. 552.030, subsec. 2. The circuit court then accepted a plea of not guilty by reason of mental disease or defect and ordered petitioner committed to the custody of the director of the division of mental diseases. All of this occurred without a hearing, absent the petitioner’s presence, knowledge or consent, and without the court ever having made a determination and finding of record that petitioner was mentally fit to proceed.

In Briggs, the court of appeals found at 509 S.W.2d 157:

“The following expressed findings set forth in the certified report of the psychiatric examination of petitioner, that he ‘has a mental disease and defect within the meaning of Section 552.010, which existed at the time of the alleged offense’, that he ‘requires psychiatric hospitalization pending further proceedings’, and that ‘he has the capacity to understand the proceedings against him and assist in his own defense’, are irreconcilable and at war with each other and, standing alone, raised a ‘bona fide doubt’ and cast substantial suspicion upon petitioner’s mental fitness to proceed. The trial court’s failure to conduct a hearing and determine petitioner’s mental fitness to proceed constituted an abuse of the discretion invested by subsection 6 of Section 552.020, supra, thereby so tainting all subsequent proceedings that the Order of Commitment issued out of the Circuit Court of Clay County, Missouri, under date of April 14, 1971, must be declared invalid.”

Briggs correctly applies the standards imposed by Pate v. Robinson, supra, to the facts of that case. The factual makeup of the present case distinguishes it from Briggs. One distinguishing factor is the movant’s presence before the court on three different occasions. The judge had an opportunity to observe the movant and analyze the responses to his questions. Second, the court had the opportunity to hear the testimony of Dr. Marco and several persons who worked with movant. The object of this testimony was to prove that movant was not a dangerous person and that he would be able to function as a law-abiding citizen if placed on probation. The testimony of those who worked with movant, noted supra, portrayed movant as a hard worker, capable of accepting responsibility, who worked well with others, and was generally liked by the customers at the restaurant. Finally, unlike the petitioner in Briggs, the psychiatric report did not recommend that movant be hospitalized for his condition, nor did it unequivocally state that movant did not know the nature, quality or wrongfulness of his conduct or was unable to conform his conduct to the requirements of the law at the time of the alleged crime. Note that in Briggs the recommendation that the petitioner be hospitalized was given emphasis by the court. In the present case Dr. Marco had merely recommended “individual or group psychotherapy”, indicating a much less severe case of mental disease or defect.

In light of these differences, the findings set forth in the reports of the psychiatric examinations were not “irreconcilable”. The finding that the movant had the capacity to assist in his defense and the conclusion that he was competent to stand trial were supported by the evidence adduced at the hearings from movant and others and from the findings and conclusions of Dr. Marco set out supra. The evidence clearly established that movant fully comprehended that which had been occurring in his daily life, social life, and in court. All of this confirmed the prior determination made by the trial judge on the basis of the psychiatrist’s report that movant understood the proceedings and was capable of cooperating in his own defense, despite his mental disease or defect. The facts presented here were insufficient to raise a bona fide doubt regarding the mental fitness of movant.

On the periphery of this case, there seems to be the question as to whether or not defense trial counsel failed to adequately represent the movant by reason of his failure to request an evidentiary hearing with respect to movant’s competency to proceed. It is quite clear that under sec. 552.020, subsec. 6, a defendant (defense counsel) and the state both have the absolute right to contest a psychiatrist’s opinion with reference to fitness to proceed and in that way require an evidentiary hearing be held. There certainly is no question but what the responsibility for representing a defendant, including the making of numerous decisions throughout the proceedings, is lodged with defense counsel. Courts ought not interfere with defense counsel’s responsibility in this regard unless the facts of the situation clearly demonstrate that justice requires the interference. It simply cannot be said that a defendant’s overall interest will always be served by holding an eviden-tiary hearing each and every time a medical report states that he is suffering from some kind of mental disease or defect. At such a hearing it can be anticipated that the state, in order to show a defendant is competent to proceed, may well introduce substantial testimony with reference to his daily life and conduct. The total effect of such a hearing may well be to impede and perhaps forestall arrangements with respect to a plea of guilty which could be in the interest of the defendant. The choice as to whether or not to have such an evidentiary hearing should be left where the statute places it, to wit, on demand of the defendant, the state, or the court. With respect to this particular case, it is apparent that the movant hoped for and earnestly sought probation and, to that end, introduced substantial testimony that he was reasonably able to handle his own affairs and that he knew what was going on. No where does it appear that movant desired the consequences of being found mentally unfit to proceed, as set forth in sec. 552.020, subsec. 7.

The court has no desire to minimize the import of Pate v. Robinson, supra, nor any of the other cases which have addressed themselves to the mental competency of a defendant to proceed in a criminal case; however, the requirement that a court must act sua sponte to hold a hearing ought to remain the exception rather than the rule. In this way a defendant has the benefit of the considered opinion of his attorney and is left with a choice. To require an evidentia-ry hearing in every case where there is any finding of mental illness removes the benefit of choice from the defendant.

From the foregoing, this court concludes that the trial court need not, sua sponte, hold a hearing just because a psychiatric report indicates a defendant is suffering from a mental disease or defect under sec. 552.010, even though the report also states a defendant is competent to stand trial. Sec. 552.010 does not identify specifically the diseases or defects covered by that section and there is no official listing which a trial court might turn in order to know that a diagnostic term used by a doctor falls within the scope of sec. 552.010. When a psychiatrist’s report shows a diagnosis of some mental defect, it would certainly be prudent for the trial court to set an eviden-tiary hearing at which the report and any other evidence pertinent to the issue could be placed in evidence and the court would then make its findings as to competency to proceed, but this is not mandatory unless the findings in the report are contested or other facts raise a bona fide doubt as to competency to proceed. On the facts of this case, neither Pate v. Robinson, supra, nor Briggs v. State, supra, compel a reversal of the judgment.

The judgment of the circuit court is affirmed.

MORGAN, C. J., and HENLEY, FINCH, and RENDLEN, JJ., concur.

DONNELLY, J., dissents in separate dissenting opinion filed.

SEILER, J., dissents and concurs in separate dissenting opinion of DONNELLY, J.

DONNELLY, Judge,

dissenting.

In Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the United States Supreme Court held that when circumstances create a “bona fide” doubt as to an accused’s competency to proceed with trial, due process of law requires the trial court to conduct a hearing on the question, whether requested or not.

Judge Turnage, in his opinion in the Court of Appeals, said:

“Much more closely akin to the factual situation in this case is Briggs v. State, 509 S.W.2d 154 (Mo.App.1974) in which this court considered a psychiatric report which stated petitioner had a mental disease and defect within the meaning of § 552.010, RSMo 1969, and at the same time found he had the capacity to understand the proceedings against him and to assist in his own defense. This court held the report to be so irreconcilable that standing alone such report raised a bona fide doubt and cast a substantial suspicion upon petitioner’s mental fitness to proceed. This court further held the failure of the trial court to conduct a hearing to determine petitioner’s mental fitness to proceed constituted an abuse of discretion under Sub-Section 6 of § 552.020, RSMo 1969.
“The question in this case is whether or not the two reports of Dr. Marco were sufficient to raise a bona fide doubt as to Bryant’s competency and mental capacity to proceed on the charges pending against him and to intelligently assist his counsel. This court has concluded, as it did in Briggs, that the inconsistent and irreconcilable nature of the report required the court to sua sponte hold a hearing as provided in Sub-Section 6 of § 552.020 to determine the mental fitness of Bryant to proceed. This is based upon the finding of Dr. Marco on the one hand that Bryant was suffering from hysterical personality and hysterical neurosis dissociative type at the time of the report on January 10, 1974. There is nothing in the report of February 21, 1974, to indicate such diagnosis had been changed. Dr. Marco was careful to point out that hysterical personality and hysterical neurosis are both considered to be a mental disease or illness as defined in § 552.010.
“At the same time Dr. Marco stated Bryant was aware of the nature of the charges and was able to cooperate with his counsel and was, therefore, competent to stand trial. There is no explanation in either report to show how Bryant could be suffering from these mental diseases and defects and at the same time be competent to stand trial. In fact, other portions of the reports would seem to negative the conclusions as to Bryant’s competency, at least absent some explanation on the part of the psychiatrist. These include the finding that Bryant had a problem concerning his memory functioning and that under severe emotional stress he had difficulty in immediate recall and had amnestic states. A further observation in the report of February 21 adds to the doubt of Bryant’s capacity to proceed. Dr. Marco stated ‘although it appears that Mr. Bryant voluntarily confessed, I am struck by the enormity of his response to fear and the subsequent difficulty he has in talking to me about the events and the mental mechanisms of denial and suppression that are presently operating.’ In view of all of the opinions and observations stated by Dr. Marco in his two reports, this court is forced to conclude that such reports were so irreconcilable that they raised a bona fide doubt as to Bryant’s fitness to proceed.
“With the doubt thus raised, the court should have sua sponte held a hearing on Bryant’s mental ability to understand the nature of the charges and his ability to cooperate with his counsel. This was required under Pate * * * and Briggs."

In my opinion, the Briggs holding is sound, it follows the letter and spirit of Pate, and I would adopt it as the position of this Court. A hearing on a defendant’s competency to stand trial should be held sua sponte when a psychiatric report indicates that the defendant is competent to stand trial but also indicates he is suffering from a mental disease or defect under § 552.010, RSMo 1969. Further, I agree with the Court of Appeals that under the facts in this case, and the holding in Briggs, a bona fide doubt was raised as to appellant’s competency to stand trial and a hearing should have been held by the trial court sua sponte on this issue.

The judgment of the trial court is clearly erroneous. It should be reversed and the cause remanded with directions to the trial court to vacate the original judgment and sentence. Pate v. Robinson, supra, 383 U.S. 375, 387, 86 S.Ct. 386, 15 L.Ed.2d 815. The State would then be free to proceed further against appellant, assuming, of course, that he is then competent. Drope v. Missouri, 420 U.S. 162, 183, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

I respectfully dissent.

      . “552.010. Definition of mental disease or defect
      The terms ‘mental disease or defect’ include congenital and traumatic mental conditions as well as disease. They do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, whether or not such abnormality may be included under mental illness, mental disease or defect in some classifications of mental abnormality or disorder. The terms ‘mental disease or defect’ do not include alcoholism without psychosis or drug abuse without psychosis or an abnormality manifested only by criminal sexual psychopathy as defined in section 202.700, RSMo, nor shall anything in this chapter be construed to repeal or modify the provisions of sections 202.700 to 202.770, RSMo.”

      . The transcript of the court proceedings of February 25, June 3 and 6, 1974, are in evidence in this proceeding.

      . See State v. Gallup and Baker, 520 S.W.2d 619 (Mo.App.1975).


source: Caselaw Access Project

author: HENLEY, Judge. BARDGETT, Judge, SEILER, Judge,

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Kim Eugene PHILLIPS, Appellant.
    No. 59379.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.
    Rehearing Denied April 10, 1978.

      Adam B. Fischer, Durley, Keating & Fischer, Sedalia, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Neil MacFarlane, Asst. Attys. Gen., Jefferson City, for respondent.
   HENLEY, Judge.

Kim Eugene Phillips (defendant), charged with and convicted of second degree murder, was sentenced in accordance with a jury verdict to 50 years in the custody of the Department of Corrections. On appeal to the Court of Appeals, Kansas City District, the judgment was reversed for error in admitting in evidence a written statement given by defendant to police officers, and the case was remanded for a new trial. We ordered the case transferred to this court on application of the State. We affirm.

The body of Karen Jones was found in her Sedalia apartment August 13, 1973. Her death was caused by strangulation.

Defendant, a 21 year old former Air Force enlistee, was among acquaintances of the dead woman questioned by police regarding their whereabouts the evening before discovery of the body. Defendant was a native of the state of California and graduated from Pacifica, California high school in 1970. He had been stationed at White-man Air Force Base, but was living in Seda-lia at the time of the crime. He went to police headquarters of his own volition on the morning of August 15, 1973, where he was questioned by James Donley, a deputy sheriff. As a result of this questioning he agreed to take a polygraph test administered the next day (August 16) at Troop A headquarters of the State Highway Patrol in Lee’s Summit. The test was given by Merlin Buesing, a member of the State Highway Patrol. During a discussion of the test results defendant’s response to a question tended to incriminate him. Deputy Donley, who had driven defendant to Lee’s Summit that morning, observed the polygraph test and heard this discussion from an adjoining room. Later that day, between 6:30 and 7:00 p. m., at the Pettis county courthouse in Sedalia, defendant, in response to questions by Emmett Fairfax, Sheriff of Pettis county, made a statement confessing that he killed Karen Jones. This statement was reduced to writing, signed by defendant, and witnessed by Sheriff Fairfax and Patrolman Buesing.

Defendant moved to suppress all evidence of oral and written statements made by him to or within the hearing of the police officers regarding the killing of Karen Jones on the ground they were not made voluntarily, because he was not fully advised of or accorded rights guaranteed him by the federal and state constitutions in that (1) he invoked but was denied the rights to remain silent and to have counsel present during his interrogation by police; (2) he was misled and tricked into making an incriminating statement by erroneous advice given him by Patrolman Buesing.

Two-thirds of the approximately 300 page transcript of the record is made up of evidence presented at the pretrial hearing of the motion. The motion to suppress was overruled. At a trial before a jury his oral admission to Patrolman Buesing at Lee’s Summit and his written confession were admitted in evidence over his objections.

James Donley, a deputy sheriff of Lafayette county and a member of the Metro Squad with headquarters at the courthouse in Sedalia, testified that defendant came to the Pettis county courthouse during the morning of August 15, 1973, to talk to someone regarding the Karen Jones homicide; that he was assigned to interview defendant and they went to a room adjacent to the courtroom for that purpose; that before interviewing defendant he “warned him of his rights” by reading to him from a card containing the Miranda warnings; that after informing defendant of his rights, he asked him whether he understood those rights and defendant replied that he did; that he also asked whether he wished “to talk to us now” and defendant said “he wanted to tell us or help us on the case if he could”; that he listened to what defendant had to say and at the end of the interview they agreed that defendant would take a polygraph test the next morning in Lee’s Summit; that defendant returned to the courthouse the next morning and they left for Lee’s Summit in the Deputy’s patrol car; that they did not discuss the Jones homicide case en-route.

Deputy Donley further testified that on arrival at Patrol Headquarters he introduced defendant to Corporal Merlin Bues-ing; that defendant and Corporal Buesing went into the polygraph room; that he went into an adjoining room from which he could see and hear the polygraph test without being seen or heard; that Corporal Buesing had a printed “waiver” form which had been prepared for the signature of a person who voluntarily submitted to a polygraph test; that the Miranda “rights” were printed on this form; that Corporal Bues-ing read and explained the rights to defendant; that defendant said he understood his rights and signed the waiver; that Corporal Buesing explained to defendant how the polygraph machine worked and then began the test; that near the end of the test, defendant said to Corporal Buesing that “he [Buesing] didn’t have to look any farther, he had his man * * that defendant said essentially the same thing to him (Donley) just before they stopped at a restaurant in Lee’s Summit enroute back to Sedalia late that afternoon.

Corporal Buesing testified that he and defendant read together and discussed the waiver form and defendant’s “rights,” as defined by Miranda, before the polygraph test was given; that he explained and they also discussed the polygraph procedure; that during their discussion he placed the waiver form in front of defendant for his signature; that defendant said “he didn’t know whether he should have an attorney or not”; that he (Buesing) “told him that this, he would have to decide before we went ahead”; that defendant then signed the waiver form, dated it, and wrote the hour of 11:30 or 11:45 a. m. next to the date, indicating and saying that he wanted to go ahead with the test; that he then gave defendant the polygraph test, which took about an hour or an hour and a half; that after the polygraph test was completed he (defendant) indicated to me that there was more he could tell me about the case, so “I asked him directly if we should be looking for other persons * * * and he indicated that we should not”; that at this point defendant mentioned that “he didn’t know if he should talk to an attorney or not”; that he reminded defendant that this was one of his rights and it was for him to decide whether he should; that defendant “thought a little bit and then we went ahead with our discussion”; that defendant did not at any time ask to see an attorney; that his attitude as to whether he wanted an attorney present was: “I don’t know,” I am “considering” the question.

Corporal Buesing further testified that at some time during the day, possibly near the end of their discussions, defendant mentioned that he had a friend in Sedalia named Greg Woods, who knew some good lawyers, and that “he might want to talk to •Greg Woods about talking to a lawyer”; that defendant asked him to make arrangements for him to talk to Greg Woods; that he talked to someone (not the sheriff) at the Metro Squad headquarters and told that person that defendant had “indicated we didn’t * * * need to look for another person involved in this thing”; that he also told this person that defendant had said he might want to talk to Greg Woods and had indicated he “might want to talk to a lawyer”; that he asked that the Metro Squad have Greg Woods available, if possible, at Squad headquarters when they (Deputy Donley, defendant, and Corporal Buesing) returned to Sedalia that evening.

Sheriff Fairfax testified that during the afternoon of August 16 he received information through the Metro Squad that defendant, Corporal Buesing and Deputy Don-ley were enroute to Sedalia and that defendant “may want to talk to a lawyer”; that there was no mention to him that day by anyone, including defendant, that defendant wanted to talk to a Greg Woods; that he met defendant in a jury room of the Pettis county courthouse sometime between 6:30 and 7:00 p.m. on August 16,1973; that he took a statement from defendant after first informing him of his Miranda rights by reading them from a card; that after explaining these rights to defendant he asked him whether he understood his rights; that defendant responded that he did; that after defendant said he understood, he (the sheriff) asked him whether he wished to talk to us now.

■ Defendant’s response to this question, according to the sheriff, and the next two questions and answers were as follows:

“A. He responded.he said he didn’t know whether he should talk to us at this time with.without before he.or without talking to a lawyer, some words to that affect. He said he didn’t know whether he should talk to us without talking to a lawyer.
“Q. What did you tell him, if anything, at that time?
“A. I told him that that was his right that he could have counsel, he could talk to a lawyer at any time that he desired and that further that he could also waive that right if he desired to talk to us about the Karen Jones murder.
“Q. What did he do at that time?
“A. Well he said he guessed that he would, and went on to talk to us about the afternoon of August the 12th and 13th of 1973 and about Karen Jones.”

Sheriff Fairfax further testified that as defendant talked of what occurred at Karen Jones’ apartment on August 12 and 13 and how he killed her, he (the sheriff) typed in narrative form the two-page statement which was admitted in evidence; that after the statement was finished, he went over it with defendant; that defendant made corrections by striking through words and initialing the parts he had stricken; that defendant then signed the statement in the presence of Corporal Buesing and him.

Sheriff Fairfax also testified that he got in touch with the prosecuting attorney that afternoon and told him that defendant “may” want to talk to a lawyer, not that defendant had “requested” a lawyer.

Gary W. Fleming, prosecuting attorney of Pettis county, testified that the sheriff talked with him the afternoon of August 16 about arranging to have an attorney available “ * * * should Kim Phillips want to talk to one”; that he contacted the county magistrate by telephone regarding the appointment of an attorney should defendant “want to talk to an attorney”; that the magistrate told him Adam Fischer was the attorney next on the list for appointment and that he (the prosecuting attorney) should contact Mr. Fischer direct and tell him that he was to consider himself appointed should it develop that defendant wanted to talk to an attorney; that he (the prosecuting attorney) contacted Mr. Fischer later in the day and determined where he could be reached that evening if he were needed, but he had no occasion to call Mr. Fischer that evening.

The defendant testified that he did not tell Corporal Buesing that “[he] didn’t know whether [he] should talk to an attorney,” that his exact words were: “I would rather talk to an attorney before answering any questions”; that he told Corporal Buesing this before he signed the waiver form and consented to take the polygraph test; that he talked to Corporal Buesing about Greg Woods “just before [he] signed the [waiver and consent form] * * *, when he [Bues-ing] asked me if I understood my rights [and] I told him yes and that I would rather speak to a lawyer before answering any more * * * or any questions”; that he did not mention Greg Woods again in Lee’s Summit after he signed the waiver and consent form that morning; that Corporal Buesing told him that afternoon that he had been in touch with the Metro Squad and had asked that Greg Woods be contacted and that he (Woods) “would probably be at the courthouse when we” returned to Sedalia.

Defendant further testified that after the polygraph test had been completed Corporal Buesing told him “that what [he] had answered had not corresponded to what the polygraph showed”; that his response to this was: “Well I.I didn’t say much of anything, shrugged, lifted my shoulders in acknowledgment and in question and he went on to ask me that.if.if I knew who had killed Karen Jones and I told him no and this was after the test was. was.well had dis.turned off the thing and disconnected the wiring from me. He asked me if I knew who killed her and I told him no I didn’t and then he asked me.he told me that according to what we have here you’re not telling me the truth and I says, well I’m.I’m telling you what I know and he says well we can make things a lot simpler if.if you come right out and tell me. He told me that it wouldn’t go against you in any way and that it wouldn’t be used against you in court * * * ”; that Corporal Buesing also told him, just before he told the corporal that he did not need to look any further for anybody, that “what I [had] told him couldn’t be used because it would be unconstitutional to convict a person on * * * the basis of a confession.”

Defendant further testified that they arrived at Sedalia at about 6:15 p.m. from Lee’s Summit; that Greg Woods was not there when they arrived; that he did not talk to Greg Woods that evening; that he told Sheriff Fairfax, in response to the sheriff’s reading to him his rights from a Miranda card, that he understood his rights and that he “would rather see an attorney before [he] answered any questions”; that he did not tell the sheriff that “[I] didn’t know whether [I] should talk to a lawyer”; that at this point the sheriff left the room and returned with a typewriter; that he then gave the sheriff a statement which the sheriff typed on two sheets of paper; that the sheriff went over the statement with him; that he did not read the statement, but it was read to him and “as we got to the mistakes I corrected them, lined them out and put my initials [where each correction was made]”; that he was reluctant to sign the statement and did not do so until “I told him [the sheriff] that I would rather see an attorney before signing it”; that he signed the statement and the sheriff and Corporal Buesing witnessed his signature; that there was “not any one of those rights * * * that [he] didn’t understand,” and that he “didn’t have any question about any of them."

In connection with defendant’s testimony that Corporal Buesing had told him that “it would be unconstitutional to convict a person bn the basis of a confession,” Corporal Buesing testified, on cross-examination, that he was “aware of” but “not familiar with” the “legal concept” that “a defendant cannot be convicted on the basis of an out of court statement alone unless a corpus delicti is established”; that “this was mentioned” during the discussions before defendant “indicated [we] didn’t have to look any further”; that he does not “recall exactly” what was said by him or defendant, but the “basic context” of what he said to defendant was: “that the Metro Squad was developing evidence in the case which was pointing more and more to him and that this evidence would be necessary in making a case against him * * * [that] there must be something besides his own admission.” He further testified, on cross-examination that both he (Buesing) and the sheriff told defendant “that he was going to have to decide” when defendant said, immediately after the sheriff read defendant’s rights to him, “that he didn’t know if he should talk to * * * a lawyer”; that he (Buesing) also asked him: “do you want a lawyer?” and he (defendant) “didn’t say he wanted one” and he did not say “he did not want one * * * he just indicated let’s go ahead.”

As stated, the motion to suppress was overruled, the court having found that defendant was fully advised of his rights under Miranda, that he freely, intelligently and voluntarily waived those rights, and that the oral and written statements made were voluntary and admissible in evidence. There is no claim here that either one of the statements was the product of coercion, threats, fear or promise of leniency.

Defendant’s points on appeal are that the court erred in overruling his motion to suppress and in admitting at the trial, over his objection, all evidence of (1) his oral incriminating statement to Corporal Buesing in Lee's Summit; and (2) his written statement made to the sheriff in Sedalia and oral statements elicited from him in the process of preparation of the written statement, all because these statements were not made voluntarily. Specifically, defendant’s contentions are that these statements were not made voluntarily, because he invoked his right to silence and to have an attorney present before and during interrogation in Lee’s Summit and thereafter before and during interrogation in Sedalia; that the police officers were required to, but did not, honor his request for the presence of counsel made before questioning began and during questioning.

In this connection, he relies heavily upon language in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as follows:

“The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.” 384 U.S. at 444-445, 86 S.Ct. at 1612.

This court said in State v. Alewine, 474 S.W.2d 848 (Mo.1971) at l.c. 852:

“The question before the trial court at the conclusion of the hearing on the motion to suppress and again during the trial on defendant’s objection to the testimony of oral confession was whether the alleged statement was voluntarily given and, therefore, admissible in evidence. The question on appeal is whether the evidence was sufficient to sustain the trial court’s finding that the statement was voluntarily given;”

The evidence is clear that the police officers thoroughly informed defendant of his rights on at least three occasions, that he understood what they said to him about his rights, and that he knew his rights. His answer to one question demonstrates clearly not only that he knew and understood his rights as defined by Miranda,, but that he had committed them and their meaning to memory. The question and his answer are as follows:

“Q. Do you know what it was he read off that card?
“A. That I had the right to remain silent, that if I gave up the right to remain silent anything I could say would be used.could be used against me in a court of law, that I had the right to an attorney to have him present during the questioning, that if I did and so desired but could not afford one, an attorney would be appointed to me.”

The evidence is clear that defendant signed a paper waiving his rights and consenting to take the polygraph test before any questions were asked him about the homicide. The evidence is clear that after his confession to the sheriff of the murder of Karen Jones, he signed a paper recording the confession and declaring that he had “made no request for the advice or presence of a lawyer before or during any part of [the] statement.”

The evidence is conflicting as to whether he indicated that he did want to speak with an attorney and have him present during questioning by Corporal Buesing at Lee’s Summit and later by the sheriff in the presence of Corporal Buesing at Sedalia. Defendant testified, in substance, that he did not tell either of them that he did not know whether he should talk to an attorney, but, on the contrary, he told them he did want to talk to an attorney before he answered any questions. The trial judge resolved the credibility question presented by this conflict between the testimony of defendant and that of the sheriff and Corporal Buesing by accepting the officers’ testimony. Moreover, there is evidence, admitted at one point by defendant, that Corporal Buesing said to him that he (defendant) would have to decide, before they went any further, the question of whether he wanted an attorney present during the polygraph test. This and evidence of a similar answer by defendant in response to similar advice by the sheriff before questioning defendant in Sedalia, indirectly support the trial judge’s resolution of this credibility question.

Defendant takes the position that even the State’s version of what he said about whether he wanted an attorney present during interrogation at Lee’s Summit and later at Sedalia amounted to such an indication of his desire to consult with an attorney as to require the officers to discontinue questioning. He argues that the State’s version of what he said (“that he didn’t know if he should talk to an attorney or not”) together with his statement that he wanted to talk with Greg Woods about talking to a lawyer was such a clear, unequivocal expression of his desires as to require that there be no further questioning until he had been provided with a lawyer and time to consult with him.

The State takes the position that defendant’s statements to the police as to whether he wanted an attorney present, including his statement that he wanted to (or “might” want to) talk to Greg Woods about talking to a lawyer, were not indications that he did wish to consult with a lawyer; that they were indications only that he did not know whether he did or not, that he was “considering” whether he needed to, and had not decided.

The trial court accepted the State’s version of what defendant said and what he meant by what he said in the light of his admitted knowledge that he had the “right to have * * * [an attorney] present during the questioning * * and determined that defendant had not indicated (1) that he did wish to have a lawyer present, or (2) that he did not wish to be interrogated.

The court in Miranda, 384 U.S. at 483—485, 86 S.Ct. 1602, 1633, 16 L.Ed.2d 694 recognized the problem presented by the person advised of his rights who manifests indecision as to whether he desires counsel during interrogation. The court referred to and quoted from a letter from the Solicitor General which the court said “makes it clear that the present pattern of warnings and respect for the rights of the individual followed as a practice by the FBI is consistent with the procedure which we delineate today.” We quote from that part of the Solicitor General’s letter set out in the opinion (p. 485, 86 S.Ct. p. 1633) stating the Bureau’s practice in a situation not unlike that presented in this case:

“ ‘ “When the person who has been warned of his right to counsel decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point, * * *. It may be continued, however, as to all matters other than the person’s own guilt or innocence. If he is indecisive in his request for counsel, there may be some question on whether he did or did not waive counsel. [Emphasis added.] Situations of this kind must necessarily be left to the judgment of the interviewing Agent. For example, in Hiram v. U. S., 354 F.2d 4 (1965), the Agent’s conclusion that the person arrested had waived his right to counsel was upheld by the courts.” ’"

The police officers in this case concluded that defendant had not indicated a desire for, but had waived counsel. These officers and defendant testified fully on this subject at the hearing on the motion to suppress. The trial judge who heard the testimony of all the witnesses and observed their demeanor at the hearing has reviewed the officers’ conclusion and has made his own judgment as to what defendant said to the officers and what he meant by what he said. His (the judge’s) conclusion was that defendant had not expressed a desire to consult with an attorney, but had waived that right. The evidence is sufficient to sustain that conclusion.

As to his incriminating reply to Corporal Buesing’s inquiry, “should [we] be looking for other persons?” defendant claims that the reply was produced by trickery and, therefore, was not voluntarily made. In support of this contention he relies upon the following language appearing in Miranda at pages 455 and 476, 86 S.Ct. at pages 1617, and 1629.

“ * * * When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. * * * The police then persuade, trick or cajole him out of exercising his constitutional rights. ******

“ * * * [A]ny evidence that the accused was threatened, tricked or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.”

Defendant testified that just before he made this reply, Corporal Buesing had told him that “what I [had] told him [Buesing] couldn’t be used because it would be unconstitutional to convict a person on * * * the basis of a confession.” Corporal Bues-ing testified that before defendant indicated by his reply that “[we] didn’t have to look any further,” he stated to defendant that the Metro Squad was developing evidence which pointed toward him as the murderer and that “there must be something besides his own admission.”

Defendant contends that this is the “false legal advice” and “trickery” which produced his reply. Of course, defendant has not shown that the “advice” given was false. Assuming that the reply was produced by trickery, this does not necessarily make the reply involuntary and, therefore, inadmissible in evidence. Defendant does not contend that his will was overborne as a result of Corporal Buesing’s statement. The evidence supports the trial court’s conclusion that this incriminating reply was in fact voluntary, and in these circumstances, we will not say that the trial court erred in overruling the motion to suppress and in admitting the reply in evidence. Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); State v. Stubenrauch, 503 S.W.2d 136, 138[3, 4] (Mo.App.1973).

As indicated, we determine that the evidence was sufficient to sustain the trial court’s finding that defendant’s oral and written statements to the police were made voluntarily. The court did not err in overruling the motion to suppress and in admitting these statements in evidence.

The judgment is affirmed.

MORGAN, C. J., and PINCH, DONNELLY and RENDLEN, JJ., concur.

BARDGETT and SEILER, JJ., dissent in separate dissenting opinions filed.

BARDGETT, Judge,

dissenting.

I respectfully dissent. For the purpose of clarity and continuity I will set forth the facts as I see them from the record.

In addition to the written statement given by the appellant, there was an oral statement which the trial court also admitted into evidence over objection. The primary issues in this case are: 1) did the appellant at any time during his interrogation assert his right to speak with an attorney; 2) if he did assert that right, at what point in time did he do it; and 3) did he waive that right? There is some disagreement on the facts of this case, specifically, what exactly was said about requesting an attorney and when was it said?

On August 15, 1973, appellant went to the police in Sedalia of his own volition to be questioned about a murder which had occurred on August 13, 1973. At this time appellant was given the “Miranda ” warnings which he acknowledged he understood. Nothing occurred during this interrogation to further implicate the appellant. He claims, however, the police told him they were not satisfied with his answers and if he did not “come clean” they “would put the B” on him. He took this as a threat to give him a polygraph test. The police, however, stated they only asked the appellant whether he would be willing to take a polygraph test to which he answered yes.

The next morning appellant arrived at the Pettis county courthouse in Sedalia in order to be transported to highway patrol troop A headquarters at Lee’s Summit where the polygraph test would occur. At approximately 11:30 a. m., the appellant was ushered into a room where Corporal Merl Buesing was to conduct the test. When appellant entered the room, Buesing presented him with a waiver form which advised that appellant had the right to remain silent, that anything he said could be used against him in a court of law, he had a right to talk with an attorney and have him present during questioning, and if he could not afford an attorney one would be appointed. Buesing then explained to appellant how the polygraph machine operated. At this point, according to Buesing, the appellant said something to the effect he didn’t know whether he should have an attorney or not. According to Buesing he told appellant he would have to decide before they went on. There was a fifteen-second pause after which Buesing began asking more questions and explaining the operation of the polygraph machine. Shortly after the mention of an attorney, the appellant signed the waiver form.

The appellant’s memory of this event is somewhat different from Buesing’s account. According to appellant after the rights were read to him Buesing asked whether appellant wanted to go ahead and talk, to which appellant replied, “I think that I would rather see an attorney before I answer any questions.” Furthermore, a friend of appellant’s, Greg Woods, knew some attorneys in Sedalia and appellant wanted to speak with Woods. According to appellant, Buesing said he would make arrangements for appellant to meet with Woods when he returned to Sedalia. After this, the appellant signed the waiver form.

Buesing then conducted the polygraph test. After the test was concluded, Buesing continued to question appellant about the murder. Buesing asked the appellant whether the police had to look any further, to which appellant answered “no”. Right after this, appellant stated once again he didn’t know if he should talk to an attorney or not. On cross-examination Buesing agreed that appellant had mentioned that he might want to talk with Greg Woods about a lawyer, but Buesing could not remember when. After the appellant’s second statement about seeing a lawyer, Buesing did not ask any more questions of appellant. Buesing then called Sedalia to ask them if they could have Greg Woods at headquarters because appellant wanted to speak with Woods and he informed them appellant might want to talk with an attorney. According to appellant, after he answered “no” to the question of whether the police had to look any further, Buesing brought up the subject of Greg Woods and where he could be found.

Officer Donley who was listening to the questioning from an adjoining room remembered that toward the end of the questioning the appellant mentioned he might want to talk with an attorney and Greg Woods. Donley did not remember a similar conversation having occurred earlier.

Prior to the time appellant answered the question about looking any further, Buesing made a statement about corpus delicti and the use of confessions. According to Bues-ing he told the appellant something to the effect, “[t]hat the Metro Squad was developing evidence in the case which was pointing more and more to him [appellant] and that this evidence would be necessary in making a case against him besides . there must be something besides his own admission.” Buesing acknowledged on cross-examination that he said something to the effect that an out-of-court statement could not be used to convict without the establishment of the corpus delicti. Appellant claims that Buesing told him it would be unconstitutional to convict someone on the basis of a confession.

Buesing testified that after the appellant made this second request for a lawyer, he ceased questioning appellant and left the room. He testified further that while out of the room he placed a call to the police in Pettis county to tell them the appellant had asked to speak with Greg Woods about finding a lawyer and that appellant might want to speak with an attorney. In addition Buesing asked that arrangements be made to bring Woods to the Pettis county courthouse so he could speak with the appellant. Corporal Buesing told appellant that he had arranged for appellant to see Woods. Buesing stated that at the time he made the arrangements for appellant to see Woods he knew the reason why appellant wanted to do so was because “He [appellant] said he wanted to talk to him [Woods] about a lawyer.” There is also testimony from the sheriff of Pettis county that he had been advised the appellant might want to talk with an attorney. In turn, the sheriff advised the prosecuting attorney of what he had learned. The prosecuting attorney then contacted Judge Frank Armstrong of Pettis county about the availability of an attorney should the appellant request one. The judge informed the prosecuting attorney that Adam Fischer was next on the appointment list and if a request for an attorney developed Fischer should be considered appointed. The prosecutor contacted Fischer around 5:00 p. m. in order to know where he could locate him if he needed to get in touch with him.

After calling Sedalia, Buesing, Donley, and the appellant went to a restaurant in Lee’s Summit. Buesing and Donley then transported appellant back to Sedalia where he was again questioned, this time by the sheriff of Pettis county and Buesing. Before the questioning began, the sheriff read appellant the Miranda warnings. According to the sheriff when he asked the appellant whether he wanted to talk, the appellant responded that he didn’t know whether he should talk without consulting a lawyer. The sheriff testified he reiterated that it was up to the appellant to decide if he wanted to speak with an attorney or he could talk about the murder. According to the sheriff, “He [appellant] said he guessed he would.”

The appellant’s version is somewhat different. He remembers the sheriff reading him the Miranda warnings but claims he was distracted by something Buesing said and the last thing he remembers was the sheriff asking whether he understood his rights. To this the appellant says he responded, “Yes I do.” But when the sheriff went ahead with his questions the appellant claims he stopped the sheriff and said, “I would rather see an attorney before I answered any questions.” According to the appellant the sheriff then left the room for the purpose appellant thought of calling a lawyer. But when the sheriff returned he was carrying a typewriter. The sheriff then proceeded to take a statement from appellant which was typed out and which appellant signed.

The first issue presented by appellant is whether it was proper for the trial court to have admitted into evidence the appellant’s response to Buesing’s question, “do we have to look any further?” This is essentially a two-part question: 1) whether the appellant asserted his right to speak with an attorney, and 2) if he did assert that right did he subsequently waive that right?

In Miranda v. Arizona, 384 U.S. 436, at 474, 86 S.Ct. 1602, at 1628, 16 L.Ed.2d 694 (1966), the U. S. Supreme Court set forth a rule that, “[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” In the instant case there is a discrepancy in the testimony between the appellant and Bues-ing as to what was actually said with respect to a request for an attorney. According to appellant he made an unequivocal request to consult with an attorney, i. e., “I think I would rather see an attorney before I answer any questions.” On the other hand, Buesing testified that the appellant merely said, “he didn’t know whether he should have an attorney or not.” It is unnecessary for us to decide whether the appellant’s or Buesing’s version of what was said constituted a sufficient assertion of appellant’s right to speak with a lawyer because we have found he effectively waived this right when he signed the waiver form.

Just because a person in custody invokes the right to speak with an attorney does not preclude him from waiving that right later and proceeding to talk with the authorities. In United States v. Scogin, 459 F.2d 182 (8th Cir. 1972), the defendant sought to suppress as involuntarily made certain oral and written statements given to the police in which she acknowledged her complicity in a crime. She was given the full Miranda warnings and responded that she understood her rights. Prior to answering any questions, she unsuccessfully attempted to call an attorney after which she was re-warned of her rights which she waived and then submitted to interrogation. With regard to the waiver of one’s rights after requesting to speak with an attorney, the court said at 184: “The mere fact that she was unsuccessful in reaching an attorney does not prohibit interrogation where it is clear that she knowingly, intelligently, and voluntarily elected to proceed without one.” See also United States v. Marchildon, 519 F.2d 337 (8th Cir. 1975), wherein this principle was reiterated.

The instant case is similar to Scogin. Assuming arguendo the appellant actually did request a lawyer, the evidence shows he “knowingly, intelligently, and voluntarily” waived that right when he signed the waiver form. There is no evidence to suggest the appellant was forced, pressured, or compelled to make a statement. All Buesing said was the decision was up to the appellant. The record shows the appellant was read his rights on the previous day at which time he said he understood them; he was read those same rights before he was given the polygraph test and he said he understood them. Not only did he say he understood them but he signed a form in which he waived his right to remain silent and talk with an attorney. The state has successfully met its heavy burden of showing the waiver was made knowingly and voluntarily.

Next the appellant suggests his answer to Buesing’s question, “do we have to look any further”, was not made voluntarily because he was tricked and deceived into giving the answer by what Buesing said about the necessity of establishing a corpus delicti before a confession would be admissible. The appellant directs the court’s attention to two quotes from Miranda where the court said at 455 and at 476, 86 S.Ct. at 1617, and at 1629: “When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice . The police then persuade, trick or cajole him out of exercising his constitutional rights.” “. . . any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.”

Even if a statement is obtained by trickery, it does not necessarily mean that it should be suppressed. In State v. Stubenrauch, 503 S.W.2d 136 (Mo.App.1973), the defendant claimed his statements should have been suppressed because the police obtained them by deceiving him into believing other persons had implicated him. Assuming this to be true, the court of appeals still held the confession obtained was admissible. Frazier v. Cupp, 894 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), is cited as authority for the proposition that, although the defendant has in some way been deceived into confessing, his confession is admissible where he has been previously advised of his rights.

The rule with respect to the exclusion of confessions has been stated in other jurisdictions to be that confessions obtained by fraud, trickery, or deception will not be suppressed unless the subterfuge was likely to produce an untrustworthy confession. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (Pa.1974); see generally Anno., 99 A.L.R.2d 772. In Jones the court also said a confession should be suppressed where the degree of subterfuge so offends the societal notions of fairness. In the case at bar the statement had no signs that it was untrustworthy or was the degree of subterfuge so reprehensible as to cause the statement to be excluded on this ground alone. However, I believe this is a factor to be considered with reference to the question of waiver of right to an attorney which is the next issue.

The appellant’s next contention is that the trial court erred in admitting the written statement into evidence. From all the facts it seems apparent the appellant asserted his right to speak with a lawyer at approximately 3:30 p. m., shortly after he answered Buesing’s question, “do we have to look any further”. Again, there are two different versions of what transpired, but even taking the state’s version it is clear the appellant asserted his right to speak with an attorney. According to the state’s evidence, the appellant stated only that “he didn’t know whether he should talk to an attorney or not”, and he had a friend in Sedalia, Greg Woods, who knew some attorneys and he would like to speak with Woods. The appellant’s first statement in conjunction with his request to speak with Greg Woods who knew some attorneys was tantamount to a request to see an attorney. There is no question but what appellant’s request to Corporal Buesing at Lee’s Summit about talking with Greg Woods with respect to getting a lawyer was understood by Buesing to be an exercise by appellant of his rights as explained to him in the Miranda warnings. Buesing immediately stopped questioning appellant and telephoned Seda-lia in order to accommodate appellant’s request with respect to Woods and finding a lawyer. Although appellant’s requests were all oriented toward talking with a lawyer, the authorities in Sedalia after receiving Buesing’s call merely made some tentative arrangements so as to be able to contact a lawyer later, which they never did. Furthermore, Buesing told appellant that Woods would be available in Sedalia when they arrived.

There is no doubt that once an individual has asserted his right to speak with an attorney that he may at a later time under certain circumstances waive that right. Brewer v. Williams, 430 U.S. 387, 403, 92 S.Ct. 619, 30 L.Ed.2d 618 (1977); United States v. Clark, 499 F.2d 802 (4th Cir. 1974); United States v. Scogin, supra.

It is important to note at this point that waiver is not something which is lightly found by the courts. Brewer, supra, at 404, 92 S.Ct. 619. In order to establish a waiver under federal constitutional law, it is “incumbent upon the State to prove ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” Id., quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 146 (1938).

“It has been pointed out that ‘courts indulge [in] every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background experience and conduct of the accused.” Id. In addition, it should be remembered that the state has a heavy burden of proof when it comes to showing the appellant knowingly, intentionally, and voluntarily waived his right to counsel. Brewer, supra; Seogin, supra.

In the instant case the state has failed to carry that burden with regard to the written confession elicited from the appellant in Sedalia.

The evidence shows the appellant asserted his right to counsel at approximately 3:30 p. m. in Lee’s Summit and that Bues-ing recognized this, i. e., stopped interrogation, and placed a call to Sedalia. The evidence also shows that when appellant was returned to Sedalia the sheriff re-warned appellant of his rights and initiated further interrogation. At some point after the reading of the rights or after the interrogation had begun, the appellant made another request for an attorney. The sheriff’s version is that appellant said something to the effect he didn’t know whether he should go on talking without an attorney. The appellant’s version is that after he said he understood his rights the sheriff began to question him to which appellant responded, “I would rather see an attorney before I answered any questions.” Whichever version of this colloquy is correct is unimportant because the appellant had already asserted his right to speak with an attorney. The real question is whether he waived that right.

According to the sheriff, after appellant mentioned the attorney, he told appellant it was appellant’s decision to either speak with an attorney or talk about the murder. The sheriff testified that “He [appellant] said he guessed he would”, meaning he would talk to the police. I am of the opinion that this did not constitute a valid waiver under the circumstances of this case. These circumstances are: 1) appellant effectively asserted his right to speak with an attorney; 2) the police a few hours later at their own initiation began to reinterrogate the appellant; 3) there was nothing to suggest prior to the interrogation in Sedalia that the appellant had changed his mind about seeing an attorney; 4) the appellant reiterated his desire to speak with an attorney; 5) the police attempted to get the appellant to change his mind by telling him the decision was his; 6) the appellant responded half-heartedly and somewhat equivocally that he “guessed he would” talk; and 7) appellant responded to an earlier inquiry by saying the police didn’t have to look any further on the false premise put forth by the officer that a statement alone could not convict appellant when the officer knew there was a provable corpus delicti.

These facts present a situation where the appellant half-heartedly submitted to police interrogation after their repeated attempts to get him to talk as well as their repeated disregard of his request for a lawyer. In our opinion, the repeated attempts to question the appellant and the subtle attempts to influence the appellant by telling him it was his decision resulted in coercion on the part of the authorities. Under some circumstances, the phrase “I guess I would” might constitute a valid waiver, but here it appears to be a statement made in desperation because the authorities obviously were not going to allow the appellant to speak with Woods about an attorney.

In United States v. Clark, 499 F.2d 802 (4th Cir. 1974), the defendant was taken into custody as a suspect in a bank robbery and was taken before a magistrate who determined he was not entitled to a court-appointed attorney. That same day the F.B.I. read the defendant his rights and questioned him about the robbery. At approximately 4:30 p.m. while the F.B.I. was interrogating him the defendant requested to see an attorney. At this point the questioning ceased. Later that day, at about 8:00 p.m., an F.B.I. agent initiated a conversation with the defendant in which he asked whether the defendant would submit to further questioning. The defendant reiterated his desire to speak with an attorney. The agent in turn told the defendant he might as well talk because eventually the police would find him out if he wasn’t telling the truth. The agent then read the defendant his rights which the defendant acknowledged, but he refused to sign the waiver form. During the questioning which proceeded the defendant confessed.

The court held the confession should have been suppressed on both Fifth and Sixth Amendment grounds. The court singled out a number of factors which were the key to its determination that the confession was not voluntary. The court first remarked “evidence that an accused has previously asserted his right to confer with counsel is a factor which weighs heavily against finding that a subsequent uncounseled confession is voluntary.” 499 F.2d at 807. Another factor, according to the court, which pointed towards involuntariness is the initiation by the authorities of a subsequent interview in which a confession is elicited. This factor is even more important where there is no evidence to indicate that the decision to conduct a second interview was made as a result of new facts or the defendant’s change of mind.

The instant case presents the same elements which suggest involuntariness as those presented in Clark. Considering the above factors and the evidence in this case, I cannot conclude the state has carried its heavy burden to show that appellant knowingly, intelligently, and voluntarily waived his rights.

The court in Clark, quoting from United States v. Crisp, 435 F.2d 354, 357 (7th Cir. 1970), states at 807 that, “[o]nce the privilege has been asserted, ... an interrogator must not be permitted to seek its retraction, total or otherwise.” I do not agree with this rule as it is stated in Clark. There may be some circumstances in which an interrogator might be authorized to seek a retraction and, therefore, an inflexible rule such as this would be unworkable. I express no further opinion as to what those circumstances might be. See Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), for a discussion of the result of such an inflexible rule with regard to a person’s right to remain silent and thereby cut off a custodial interrogation.

I am mindful of the recent case of Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), which concerns a situation where a person voluntarily appears at a police station, is never in custody, and is free to depart at any time, which Mathiason did. The immediate distinction between Mathiason and the instant case is that Mathiason never asked to see a friend or an attorney whereas, here, appellant sought to take proper advantage of his right to see a lawyer and was frustrated in the attempt by the authorities. It also seems clear that after appellant acknowledged to Buesing that the police need look no further the appellant was certainly in custody and remained in custody throughout the questioning by the sheriff and Buesing in Sedalia. Appellant was not free to leave.

Appellant’s efforts to exercise his rights by talking with Woods about getting a lawyer were forestalled by the delaying tactics of the authorities. The right to see a lawyer having been clearly invoked by appellant, it then became the obligation of the state to show that appellant thereafter freely and voluntarily waived that right. See Miranda v. Arizona, 384 U.S. 436, 473, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 194-196, 450 P.2d 580, 586, 588 (Banc 1969); People v. Harris, 552 P.2d 10 (Colo.banc 1976); People v. Parnell, 31 Ill.App.3d 627, 334 N.E.2d 403 (1975). In my opinion, the state has failed to sustain its burden on this issue. The statement or confession given to the sheriff and Buesing by appellant after their return to Sedalia is, I believe, for the reasons stated supra, inadmissible and the trial court erred in admitting that statement into evidence over appellant’s objection.

I would reverse the judgment and remand the case for a new trial and, therefore, I dissent.

SEILER, Judge,

dissenting.

This is one of those cases where we must bear in mind that “[Njothing we write . can bring back the victim of this tragedy” and that its emotional aspects “do not qualify our obligation to apply the law with the eye to' the future”, Brewer v. Williams, 430 U.S. 387, 415, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (Stevens, J. concurring), realizing also that it is “equally important that the police, as guardians of the law, fulfill their responsibility to obey its commands scrupulously”, Brewer, supra, at 407, 97 S.Ct. at 1244, (Marshall, J. concurring).

There are two constitutional rights here which the police deliberately and successfully played against each other: the Fifth Amendment right not to incriminate oneself and the Sixth Amendment right to counsel. By falsely assuring defendant that he could not be convicted on his confession alone (well knowing that they had ample evidence elsewhere of the corpus de-licti), thus inducing a belief that he would not incriminate himself by confessing, the police at the same time encouraged defendant to waive his right to counsel, as there would be no reason to wait for counsel’s advice before speaking if by speaking he would not incriminate himself.

It was clear from the beginning that defendant did not himself know a lawyer to call, but that he had a friend, Greg Woods, who did know some good lawyers and that defendant would decide from talking with Woods whom to call. Many persons, especially in walks of life where resort to a lawyer is something strange and unusual, select a lawyer by obtaining a recommendation from a friend who knows a good lawyer. All lawyers know this to be true. This is what defendant was trying to do here and the police knew it. Corporal Buesing knew it and so did the sheriff, both of whom were key figures in the interrogation of defendant in violation of his constitutional rights. Defendant’s halting attempts and starts toward obtaining a lawyer through the help of a friend were effectively neutralized by the police disregarding his obvious desires while at the same time giving him self-serving advice on the value of his Fifth Amendment interests.

The principal opinion disposes of this by saying that even if trickery were involved it does not follow that defendant’s reply was involuntary and hence inadmissible. But this ignores the fact that even if the response were voluntary, it was brought about by indirectly persuading defendant to forego consulting with counsel and that is not permissible under Brewer v. Williams, supra, which is the leading and most recent opinion on this point by the United States Supreme Court and which is not explained or distinguished in the principal opinion. It makes no difference whether it was voluntary or not, Brewer v. Williams, supra. In Brewer the Court found it unnecessary to consider whether the incriminating statements were involuntary because in any event the judgment granting a new trial had to be affirmed on the ground defendant was deprived of his constitutional right to counsel. Id. at 397-98, 97 S.Ct. 1232.

What the police did in the case before us was improperly to qualify defendant’s belief that he needed a lawyer and then proceed to use this to obtain as much incriminating information as they could.

I therefore respectfully dissent and would reverse and remand.

      . He refers to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.ct. 1602, 16 L.Ed.2d 694 (1966), and to Mo.Const. Art. I, § 10.

      . He also relies upon the following cases which we have considered: Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); State v. Stevenson, 523 S.W.2d 349 (Mo.App.1975); Combs v. Wingo, 465 F.2d 96 (6th Cir. 1972); United States v. Priest, 409 F.2d 491 (5th Cir. 1969); United States v. Clark, 499 F.2d 802 (4th Cir. 1974); Camley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); State v. Falbo, 333 S.W.2d 279 (Mo.1960); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); State v. Mudgett, 531 S.W.2d 275 (Mo.banc 1975).