Opinion
No. 23729
January 30, 2002
Appeal From Circuit Court of Pulaski County, Hon. Douglas E. Long, Jr.
Amy M. Bartholow, for Appellant.
Shaun J. Mackelprang, for Respondent.
Opinion
Patrice Seibert ("Defendant") appeals her conviction of second-degree murder under section 565.021.1(1). Upon the jury's recommendation, the court sentenced Defendant to life imprisonment for her role in the death of Donald Rector ("Victim"). On appeal, Defendant charges there was not sufficient evidence to convict her of conventional second-degree murder. She further alleges the trial court committed reversible error when it allowed the State to introduce an inculpatory statement she made while in custody. We affirm.
All statutory references are to RSMo 1994, unless otherwise indicated.
STATEMENT OF FACTS
Because Defendant challenges the sufficiency of the evidence, we recount evidence favorable to the jury's verdict. State v. Skillicorn , 944 S.W.2d 877, 884 (Mo.banc 1997). Viewing the evidence in this light, the following are the relevant facts.
As we discuss each point, further detail will be provided when necessary.
On February 12, 1997, Defendant awoke to discover that her twelve-year-old son, Jonathan, had died in his sleep. Afflicted with cerebral palsy, Jonathan suffered from seizures, was blind, could neither walk nor talk, and could not feed himself. Upon discovering Jonathan, Defendant became hysterical and began crying. Another child of Defendant, Michael, left the home to find the eldest brother, Darian, and inform him of the situation. Darian was seventeen, and he was found by Michael at the home of Derrick Roper ("Roper") and Jeremy Batcher ("Batcher"). The three had been drinking gin and vodka and using marijuana the night before, and resumed their activities sometime before Michael's arrival that morning. Michael told Darian he needed to go home and told him why en route.
When Darian returned to Defendant's house the first time, he told Defendant to contact the police. He then went back to the Batcher and Roper house to play cards. Later, Michael again asked Darian to go home because Defendant was "going crazy." Defendant refused to contact the police because Jonathan had "sores" and was afraid the police would accuse her of child neglect. Darian, Roper, Batcher, and Michael arrived at the trailer, and a scheme was devised to burn the trailer to "cover-up" Jonathan's death. The plan called for Darian and Roper to obtain gasoline with funds provided by Defendant. Defendant was to send her two youngest children, Patrick and Shawn, to church, then leave the area. Finally, Darian and Roper were to set the trailer on fire.
The whereabouts of Michael at this time are not disclosed by the record.
Before the plan was carried out, the group (consisting of Darian, Roper, and Defendant) discussed the need for "someone . . . to be there" when the trailer burned so as not to raise suspicion by finding the severely handicapped Jonathan alone. During this conversation, Roper suggested they could use Victim for this role. The group knew Victim, who took medication, normally took a nap after school when they planned to set the trailer on fire. Darian and Roper went to three different stores in search of a gas can, bought one, filled it with gasoline, and called a cab to take them near the trailer park. Roper left the can in the nearby woods as he did not want someone to see him with the gas can. Then, the two went to the trailer and waited for the appropriate time to go forward with the plan.
Later, when school was out, Patrick and Shawn returned to Defendant's home. The next arrival at the trailer was Victim, followed by Defendant and Roper. Still later, Defendant's younger sons, Patrick and Shawn, were sent on their way to church, and Defendant packed a bag and some money and left the premises. With Victim asleep and the others gone, Roper retrieved the gas can from the woods where it had been hidden. During the interim, Darian fell asleep and was awakened by gasoline being poured on him. Darian went outside to wipe the fuel from his body. When Darian went back in the trailer, he saw Victim on a back bedroom floor, convulsing from an apparent seizure. He also saw that Roper was hitting Victim. Darian then sought to aid Victim. Thereon Roper said, "[y]ou're going to flip on me" and he (Roper) started to run from the trailer. According to Darian, he ran after Roper because he feared Roper would set the structure on fire. Before Roper and Darian reached the front door, however, the trailer was engulfed by fire. Darian was severely burned at this time, but did not die. Victim, who had been left behind, died from asphyxiation.
Officers arrested Defendant while she was visiting Darian in the burn unit of a St. Louis hospital. After her arrest, she gave an inculpatory statement. Later, during Defendant's trial on a first-degree murder charge, the court admitted Defendant's statement in evidence over her objection. Once the case was submitted, the court instructed the jury on first-degree murder, second-degree conventional murder, and second-degree felony murder. All these submissions were based on accomplice liability. The jury convicted Defendant of conventional second-decree murder. This appeal followed.
For ease of discussion, Defendant's Point II will be addressed initially.
POINT II: Sufficiency of Evidence?
Defendant's second point alleges, in essence, that there was insufficient evidence to support her conviction for conventional second-degree murder within the meaning of section 565.021.1(1) because no rational juror could have found Defendant "knowingly caused the death of [Victim] in the absence of premeditation or deliberation[.]" Going further, Defendant claims that, based on the evidence presented, the jury could only have convicted her of first-degree murder or second-degree felony murder per section 565.021.1(2). Specifically, Defendant says that the possibility of a first-degree murder conviction could be found through Darian's testimony, i.e., Defendant knew Victim was to be left in the fire and therefore would be guilty of first degree murder because the plan was hatched in the morning and the fire occurred later that day. Continuing, she argues the only other evidence that would support her conviction for a homicide is drawn from Batcher's testimony, i.e., Defendant was only involved in the planning of the fire, but not the killing of Victim. With that as her premise, Defendant argues the judgment must be reversed as there is no evidence to support her conviction for conventional second-degree murder.
In pertinent part, the second-degree murder statute, section 565.021 provides:
"1. A person commits the crime of murder in the second degree if he:
"(1) Knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person; or
"(2) Commits or attempts to commit any felony, and in the perpetration or the attempted perpetration of such felony . . ., another person is killed. . . .
. . . .
"3. [I]n any charge of murder in the second degree, the jury shall be instructed on . . . any and all of the subdivisions in subsection 1 of this section which are supported by the evidence. . . ."
Section 565.020.1 provides that "[a] person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter." (Emphasis supplied.)
"To convict a defendant of first degree murder on a theory of accomplice liability, the state must prove that the accomplice deliberated upon the murder; the element of deliberation cannot be imputed." State v. Rousan , 961 S.W.2d 831, 841 (Mo.banc 1998). The quintessential difference between murder in the first degree and murder in the second degree is the mens rea element of deliberation or premeditation. State v. Santillan , 948 S.W.2d 547, 576 (Mo.banc 1997).
"'Both second degree murder and first degree murder require that the act be intentionally done. Only first degree murder requires the cold blood, the unimpassioned premeditation that the law calls deliberation. Only where the defendant himself harbors this most despicable mental state does society inflict its severest punishments.'" Skillicorn , 944 S.W.2d at 894 (citation omitted). Deliberation is something the jurors cannot see and is seldom capable of direct evidence; therefore, findings of deliberation usually result from reasonable inferences drawn from the evidence. State v. Morrow , 968 S.W.2d 100, 108 (Mo.banc 1998).
"In most cases, indirect evidence of deliberation supports a finding of lack of deliberation. A jury may draw different inferences from the facts on the issue of whether the defendant deliberated. Deliberation is, therefore, a question of fact for the jury and a second degree murder instruction is usually warranted." Santillan , 948 S.W.2d at 576[2,3] (citations omitted). "This is particularly so where the evidence of deliberation is contradictory and confusing." State v. Smith , 966 S.W.2d 1, 5 (Mo.App. 1997).
Only the intentional act of the homicide may be imputed. Skillicorn , 944 S.W.2d at 895. The evidence of Defendant's own actions "must be sufficient to support an inference of [her] having premeditated upon the eventual death of Victim to justify first degree murder." State v. O'Brien , 857 S.W.2d 212, 219 (Mo.banc 1993).
Here, the evidence regarding Defendant's deliberation was contradictory and confusing. According to Darian, Defendant was described as "upset," "crying," and "hysterical." The idea of the fire was Defendant's, but Roper initiated the idea of killing Victim in the fire. Darian claimed he "didn't really think [the plan] was going to happen[,]" even after he and Roper retrieved the gas and all had left the trailer. Furthermore, Darian testified he "always thought that [Victim] would get out." Batcher testified that Defendant was not even participating in the conversation regarding the scheme, and she was "real upset and stuff[.]" Moreover, he stated Darian was the one who suggested Victim be "taken out" and that Defendant had apparently changed her mind regarding the fire by deciding to contact the police. Batcher also claimed he thought Defendant did not want Victim involved. Further clouding the issue was testimony from Officer Hanrahan who interrogated Defendant and obtained her confession. He recounted Defendant had said in her taped interview that "[Darian and Roper] were to try to get [Victim] out."
As shown from above, the evidence regarding Defendant's deliberation was unclear. On one hand, the evidence showed a horrific plan to commit the crime was conceived in the morning hours of February 12, 1997, and the plan culminated in the death of Victim later that evening. Contrary to this, the evidence showed a distraught mother who took no part in the discussion of killing Victim and thought he would be out of the trailer when the fire was initially started or shortly after that. There was no evidence of Defendant's mindset during the afternoon or after she left the trailer; she told Hanrahan, however, that she always thought Victim would survive the fire. The question of her deliberation was one for the jury; obviously, it believed the testimony favorable to a lack of premeditation. This was the jury's prerogative and will not be upset on appeal. Santillan , 948 S.W.2d at 576; State v. Cunningham , 32 S.W.3d 217, 219 (Mo.App. 2000).
The evidence proved nothing less than Darian and Roper knowingly taking the life of Victim. And although the two men may have premeditated this murder, their mens rea cannot be imputed to Defendant. Defendant actively encouraged or participated in the homicide by providing them with the money to purchase the gas can and fuel. Further, she provided an empty household excluding Victim and Jonathan. The facts and inferences that can reasonably be drawn from the circumstances of this case provided a basis for both an acquittal of first degree murder and a conviction of conventional second-degree murder as an accomplice. State v. Smith , 966 S.W.2d at 5[1] (Mo.App. 1997). Point II is denied.
Because of this holding, we need not address Defendant's further claims regarding her guilt of second-degree felony murder. Likewise, we need not discuss her assertions regarding the submission of a conventional second-degree murder jury instruction as this was entirely appropriate.
POINT I: Miranda Warning Issue: Failure to Exclude Statement
In her first point, Defendant alleges the trial court erred when it admitted her statements made to the police at trial over her objections. Defendant claims the police, specifically Hanrahan, purposefully violated her constitutional rights to due process and her privilege against self-incrimination by not following the procedures outlined in Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Before addressing Defendant's claim, additional facts are necessary.
Five days after the fire occurred (February 17, 1997), Hanrahan, as the investigating officer, decided to arrest Defendant who was at a St. Louis, Missouri, hospital with Darian, who was suffering from severe burns. Because the location was out of Hanrahan's jurisdiction, he contacted the local police to arrest Defendant and specifically told the St. Louis officer not to advise her of the Miranda rights. At 3:00 A.M., Defendant was arrested and transported to an interrogation room in St. Louis County. Hanrahan waited approximately fifteen to twenty minutes before entering the room and conducting the interrogation to "give her a little time to think about the situation." The length of the first interrogation was approximately twenty to thirty minutes and involved no threats, promises, or overt coercive activity by the police. During the first interview, Defendant made inculpatory statements, i.e., she was a part of the plan to burn the trailer to cover-up the death of Jonathan. The interviewer then gave Defendant time to smoke a cigarette and have a cup of coffee. Approximately twenty minutes after the first interview, Hanrahan again took Defendant to the interrogation room where Hanrahan read her the Miranda warnings. She then signed a waiver of rights form. Thereon, Hanrahan tape-recorded a second confession in which Defendant reiterated the details of the first confession.
The gist of Defendant's complaints here is that the police interrogation tactics were psychologically coercive.
The trial court ruled the first confession was inadmissible due to the violation of Miranda . The court did not suppress the second confession, however, and allowed the admission of it at trial. Defendant claims this was reversible error; we disagree.
Our analysis must begin with the United States Supreme Court's decision in Oregon v. Elstad , 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). In Elstad , the 18-year-old defendant was arrested at his home for burglary by two police officers. One officer was talking with the defendant's mother in the kitchen while the other was escorting the defendant out of the house. On the way out, the defendant and the officer stopped in the living room where the officer told the defendant he thought the defendant was involved in a burglary. The defendant stated, "Yes, I was there." After that, Elstad was taken to the station where he was read the Miranda warnings and again confessed. This second confession was not suppressed, although the first was excluded due to the violation of Miranda .
The Elstad court rejected two primary contentions for the suppression of the second confession. First, the Court noted a violation of Miranda is not, standing alone, a violation of the Fifth Amendment; therefore, a second statement would not have to be excluded on the basis that it was a "fruit of the poisonous tree" much like violations of the Fourth Amendment. The second argument the Court rejected was that of letting the "cat out of the bag." The Oregon court of appeals had held that the second statement should be suppressed based on the notion that the psychological impact inherent in confessing once would necessarily affect the voluntariness of the second confession. The Elstad court, however, flatly rejected that view as too "speculative and attenuated." 470 U.S. at 313. The Court then declared that
"absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights."
Elstad , 470 U.S. at 314.
In rejecting an additional argument that the officer should have expanded the Miranda warning by informing the accused that the prior statement could not be used against him, the Elstad court reiterated that "a defendant's ignorance of the full consequences of his decisions [never] vitiates their voluntariness." Id . at 316. Finally, the Elstad court provided this guidance:
"Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements."
Several foreign cases (most of them from federal courts) have analyzed the Elstad case and its implications. Although the federal cases are not controlling, they are persuasive authority. This is especially true given that Missouri courts deal with these types of issues when raised under the state constitution "in a manner consistent with analysis of those arising under the federal constitution." State v. Werner , 9 S.W.3d 590, 595 (Mo.banc 2000).
The case of United States v. Orso , 266 F.3d 1030 (9th Cir. 2001), is factually akin to this case. In Orso , an accused was arrested on suspicion of robbing a postal carrier. While being transported to another site, an officer talked with the accused about the robbery. He did this although he had not given her the Miranda warnings. The officer's explanation was that "we wanted to eventually speak with Miss Orso and thought that if we Mirandized her right away she might not want to talk with us." Id . at 1034. When the officer first talked with the accused about the robbery, he lied to her about supposed eye-witness testimony and the fact that the witness may have seen a gun used. After the officer made other representations about what their investigation had revealed, the accused made inculpatory statements. When they reached their destination, the accused asked to see her two-year old daughter, and the request was granted. Approximately ten minutes after the accused made her inculpatory statements in the car, the officers read the Miranda warning to her. Thereon, the accused waived her rights and gave a lengthy statement in which she fully confessed her involvement in the robbery. The district court overruled Orso's motion to suppress her unwarned and post- Miranda statements. After the district court overruled the motion, Orso entered a conditional guilty plea and appealed from the district court's order. The appellate court ruled that Orso's post- Miranda statement was admissible, saying "we read Elstad to create a bright-line rule which focuses only on voluntariness[.]" Id . at 1038. The court noted that the "improper tactics," i.e., purposely getting an inculpatory statement without advising the suspect of his or her Miranda rights, are to be measured when considering all the circumstances on the issue of voluntariness. The court concluded, however, that Orso's post- Miranda statement was voluntary considering all the circumstances, including the violation of Miranda and lying to the defendant.
The Orso court ruled the non-Mirandized statement should have been suppressed, that the district court erred when it ruled otherwise, and vacated Orso's conviction that was based upon the conditional plea.
In Davis v. United States , 724 A.2d 1163 (D.C.App. 1998), the defendant was arrested at 4:00 P.M., taken to the station at 4:35 P.M., first confessed at 6:20 P.M. without the benefit of Miranda warnings, and confessed a second time after the requisite warnings at 7:11 P.M. The court did not condone the police officer's deliberate failure to advise Davis of his rights, but held this standing alone was insufficient to vitiate the second, warned confession. The court also noted that the time between the two statements was a factor, but not dispositive.
In United States v. Esquilin , 208 F.3d 315 (1st Cir. 2000), a police officer took two statements from the suspect after he was in custody; the first unwarned and the second statement after the Miranda procedure had been followed. In affirming the trial court's actions of excluding the first but admitting the second statement, the court squarely rejected any arguments based on the temporal separation between an unwarned statement and one made after the Miranda warning was given. "In other words, although the elapsed time between interrogations is one factor that may dissipate the taint of a coerced confession, the lesser taint of a Miranda violation may be dissipated by subsequent warnings even if the unwarned and warned statements are obtained during the same interrogation." Id . at 319. The Esquilin court reached this result despite its assumption that the Miranda violation was deliberate. Id . at 320, n. 5. In explaining, the court said "[t]he addition of a subjective intent by the officer to violate Miranda , unaccompanied by any coercive conduct, cannot in itself undermine the suspects' free will." Id . The court found Esquilin's "warned" statement was voluntarily given, although Esquilin might have felt "that the initial statement (and the discovery of the cocaine) had 'let the cat out of the bag,' so that he might as well confess." Id . As the court explained it, "[t]he Elstad court . . . said that this sort of effect does not qualify as coercion[.]" Id .
In United States v. Carter , 884 F.2d 368 (8th Cir. 1989), the court ruled that a second warned confession should be excluded, saying that Elstad does not control when "there was no passage of time to speak of between the unwarned confession and the subsequent warnings and confession, all of which occurred as part and parcel of a continuous process." Id . at 373 (emphasis supplied). The Esquilin court characterizes the Carter case as "facially inconsistent with . . . Elstad ."2
We find the Orso , Davis , and Esquilin cases persuasive and consistent with the United States Supreme Court's decision in Elstad . Specifically, we find that two of Defendant's chief complaints revolve around the timing of the statements and the deliberate withholding of Miranda warnings. Those are facts, however, that are to be weighed as part of the totality of the circumstances, and Defendant's statements must be assessed for voluntariness in light of all of the circumstances.
In Defendant's opening brief, she never alludes to the voluntariness of her statement, but argues that Hanrahan's intentional violation of Miranda mandates reversal. As shown above, this is an incorrect reading of Elstad . Moreover, we fail to see why an intentional violation of the Miranda warnings is any more reprehensible than an inadvertent one. Defendant fails to explain why a person is, in effect, harmed to a greater extent when there is an intentional violation. The suspect in both situations does not have the benefit of the knowledge of his or her rights. Based on Elstad , Orso , Davis , and Esquilin we find no logical distinction can be found.
Belatedly, Defendant argues in her reply brief that her emotional state and the circumstances surrounding the interrogation render her statements involuntary. "The test for 'voluntariness' is whether under the totality of the circumstances defendant was deprived of a free choice to admit, to deny, or to refuse to answer, and whether physical or psychological coercion was of such a degree that defendant's will was overborne at the time he confessed." State v. Lytle , 715 S.W.2d 910, 915 (Mo.banc 1986).
In reviewing a denial of a motion to suppress, we decide only whether the evidence was sufficient to support the trial court's ruling. State v. Burkhardt , 795 S.W.2d 399, 404 (Mo.banc 1990). "The state's showing that a 'defendant was informed of his rights, that he was capable of understanding those rights, and that no physical force, threats, promises, or coercive tactics were used to obtain the confession,' is prima facie evidence that the confession given while the defendant was in custody was voluntary." State v. Johnson , 988 S.W.2d 115, 120 (Mo.App. 1999) (citation omitted).
Hanrahan testified he spoke with Defendant in low, conversational tones and made no promises, threats, or inducements of any kind when Defendant waived her rights. Defendant was read her rights and signed a waiver of rights form indicating she knew and understood these rights. Defendant's main argument centers around the fact she lost one son and another was in the hospital; therefore, she was extremely emotional. The law, however, is clear that evidence an accused is surprised and emotionally upset, absent evidence of coercion by the police officers, is an insufficient basis to conclude that a confession was involuntary. State v. Schnick , 819 S.W.2d 330, 337 (Mo.banc 1991). In fact, two days after the fire and appearing very distraught, Defendant was coherent enough to lie to the police. Defendant was arrested at 3:00 A.M. and taken to the interview room where she sat by herself for twenty minutes. Between the two statements, Defendant was given a fifteen to twenty minute coffee and cigarette break.
An audio tape of this interview confirms Hanrahan's description of the interview.
Here, the initial interrogation was not lengthy. The timing involved here is factually akin to that found in Davis and Orso . Besides the psychological coercion of "letting the cat out of the bag," Defendant can point to no coercive activity by Hanrahan. Elstad makes it clear this is insufficient to justify a finding of involuntariness. We find both statements were made voluntarily when considering the totality of the circumstances. The first statement was properly suppressed because of non-compliance with Miranda procedure, although voluntarily made. The second statement was properly admitted at trial as evidence because of its voluntary nature.
In so deciding, we have not ignored State v. Fakes , 51 S.W.3d 24 (Mo.App. 2001), a case upon which Defendant heavily relies. There, the western district ruled that the suspect's pre-warning statement and her post-warning admissions had to be excluded. In so ruling, the Fakes court found significant factual differences that rendered Elstad inapplicable as controlling authority. First, the court noted the lengthy nature of the initial Fakes interrogation, whereas the initial questioning in Elstad ended after a few minutes. Second, the Fakes court pointed out that "several times" at trial, officers "lapsed over into testifying about pre-warning statements." 51 S.W.3d at 32. The court characterized those instances, even if done inadvertently, as significant and prejudicial to Fakes because they showed her as evasive and reluctant to answer. 51 S.W.3d at 32-34. No similar circumstance existed in Elstad . Third, the Fakes court deemed it significant, that unlike Elstad , the "pre-warning interrogation [of Fakes was] the only interrogation documented in detail and remembered in detail by the police." 51. S.W.3d at 34.
The facts in Fakes , which the western district saw as distinguishing that case from Elstad , are not present here. We remain persuaded that the trial court here did not err in relying on Elstad and its progeny in ruling that Defendant's second post-warning statement was admissible. Point denied.
The trial court's judgment of conviction and sentence is affirmed.
Montgomery, J. and Barney, C.J., concur.