*1 Missouri, Respondent, STATE of HOLMES, Appellant.
Roderick
No. 61437.
Supreme Missouri, Court of
En Banc.
Nov. 1980.
As Modified On Court’s Own Motion
Dec. *2 Bear, Bear, Thomas, Hines &
David V. Columbia, appellant. for Gen., Ashcroft, Atty. Nancy D. Kel-
John Gen., ley, City, for Atty. Asst. Jefferson respondent. STOCKARD, Special Judge.
ALDEN A. Appellant found of guilty imprison- capital murder and sentenced to appealed has from the ment for life. He ensuing judgment.
Appellant challenge does not the suffi- of ciency the evidence. It is sufficient state that a jury reasonably could find from 24,1978 evidence that on June Chambers, age caused the death of Glenn 16, multiple stab by inflicting wounds. grand August
On 1978 the Missouri, returned an in- County, Audrain charging appellant with dictment murder. 24.01 provided What was then Rule that the indictment should state on its face “the section of Statutes of Missouri the Revised charged, proscribe which the conduct pen- section of the statutes fixes the therefor, alty punishment and the name degree, any, Pursu- offense.” following ant this requirement set upper forth on the hand corner of “Murder, degree, 1st sec- indictment: imprisonment, tion Penalty: 559.010 life However, prior section 559.010.” alleged date of the commission of the of- 559.010, fense which defined conventional § degree, murder in the first had been re- pealed.
A substitute information lieu of indict- Appellant ment was does not con- filed.1 charge capi- tend him with that it does Apparently corpus August 1. the substitute habeas held on information was 1978the trial lodged August “granted with the clerk of the court on court the substitute infor- leave file mation,” transcript but leave of court to file was not then it was filed but the shows hearing application January obtained. At a on an on * * readily apparent It every
tal murder in violation of 565.001 RSMo which was effect on the date statutory definition “essential fact” in the alleged murder Glenn Chambers. the indict- murder contained allegation ment point asserts his first “knowingly” the death killed caused the indictment him with “murder *3 Glenn Chambers. in degree the first under 559.010 RSMo § ** * 1969, not repealed which was in [and] 96, Simone, 98 416 S.W.2d In v. State allegedly effect the offense was at the time “Where a stat- was that (Mo.1967),it stated committed,” reason and for that the trial and sets defines the criminal offense ute “to sub- permitting court erred in State elements, practice the better forth all of its charging an information defendant stitute language to follow is for the indictment * * * proceed with and capital murder statute, will not be an indictment granting [appellant] trial thereon without if failure do so held insufficient hearing,” because as preliminary employed.” import words of similar are asserts, charged “the substitute information Harris, 664 313 S.W.2d State v. See also originally an offense different that [from] in (Mo.1958). Although indictment this charged.” allege appel- specifically case did not Jackson, In v. 594 State S.W.2d or the kill- killed caused “knowingly” lant 623, (Mo.1980), 624 it was ruled that “the Chambers, allege it did ing of Glenn pro erroneous citation statute [which Cham- on Glenn “willfully” made an assault did not charged] scribed the conduct render “on “intentionally” and bers and that he * * * nullity and the cor the indictment v. In purpose” caused death. State rection information by way of substitute this Marston, (Mo.1972), 479 S.W.2d also v. properly was allowed.” See State meaning of the word court considered the (Mo. Higgins, 592 banc S.W.2d in v. State “willfully,” and noted Therefore, 1979). required by then (1929), 23 S.W.2d Stogsdill, 324 Mo. of the indictment allegations Rule 24.01 the Edwards, 435 S.W.2d and in State v. concise and definite plain, “a contained mean “intentional (Mo.1968) it was held written statement of the essential facts v. In State Fos “accidentally.” ly” not and murder, constituting” capital as defined in (1946) ter, 355 Mo. 565.001 RSMo the indictment § ‘wilfully’ has “The word it was stated that nullity, filing and a substitute not and else- in often been defined this State offense of charged information ‘intentionally’ ‘know- or meaning where as capital permissible. murder was offense.” See ingly’ defining a criminal provides Section 565.001 RSMo Shuler, 486 S.W.2d State unlawfully, willfully, “Any who person Brown, 445 S.W.2d (Mo.1972); and State deliberately, premedi- and with knowingly, (Mo.App.1969). killing of another tation or causes the kills with- purpose” “on One cannot do an act capital guilty of the offense of human is it is done doing “knowingly,” out and it charged ap- murder.” The indictment “intentionally” done “knowingly” when it is premeditat- pellant willfully, “feloniously, did not “wilfully.” the indictment or While of his edly, deliberately, purpose, on and did use words it “knowingly,” use the word aforethought, considering malice and after supplying import and having similar fully and cool- reflecting on this matter suffi- indictment meaning. same Cham- ly, upon did make an assault Glenn mur- capital with charge appellant cient to instrument, bers, with a certain unknown information der, and since the substitute intentionally caused the and then and there ap- charged admittedly lieu of indictment him, by stabbing death of Glenn Chambers murder, did capital with pellant life of intended to take the [appellant] an offense differ- charge offense a new upon Glenn Chambers and reflected indictment. stabbing coolly fully him ent from that matter before Appellant’s point second on the When Exhibit No. 4 was offered evidence based assumption that the indictment failed to left the bench to make trial court state charge nullity. and was a He as- examination of the exhibit in camera before serts that if that were then so the substi- ruling.
tute information was in fact the first “accu-
Appellant argues
cause of death
that “the
satory pleading,” and he
tried without
cites
disputed,”
was not
and he
hearing.
being
preliminary
afforded a
(Mo.1979),
Mucie,
We have held that
the indictment
general statement
quotes therefrom the
murder,
charge
did state a
that,
of an
“it is error to admit evidence
that the substitution of the information did
if it
not reason
does
inflammatory nature
charge
an additional or different of
disprove disputed
ably
prove
tend
23.02,
effect,
fense. Rule
then in
provided
support
fact issue.” In
of his contention
*4
preliminary
that “No
examination shall be
appellant refers to the comment of
required where an
has
information
been
objecting
when
to
counsel made to the court
substituted for an indictment.”
also
See
the
the admission in evidence of
Exhibit
State,
Boykins v.
it The trial court did abuse its discretion necessarily vested with broad discre- 4,No. admitting into evidence Exhibit admitting rejecting tion in or such evidence. permitting and in its use as demonstrative Love, supra p. State v. 452. Demonstra- evidence. any tive to evidence which tends establish light fact in issue or throw on the contro- Appellant’s point final is that court any way arriv- evidence statements versy admitting aid erred in into deputy sheriffs and by made him to two ing at a correct is admissible within verdict attorney while he was prosecuting rule, accurately portrays and if it of these state- custody “the use because shown, sought be event circumstances to counsel ments violates [his] rejected by it should not be because funda- failure to observe that constitutes a presenting portrayal an accurate it tends to very con- mental fairness essential Swenson, inflammatory. be justice.” cept of Exhibit (Mo.App.1977). trial, just before the jury Prior portrayal No. admittedly was an accurate commenced, appellant filed voir dire was of the number and location of the stab suppress statements made to Of- motion showing wounds. If the of their location Tom Mullen ficer Tom Cline and Officer inflammatory number tends to sufficiently for the reason that “was portrayal, because accurate whether by set forth rights informed of his presented testimony, by oral photo- *5 in the Supreme case United States Court graph, of a paper or as this case use * * * not v. did know- Miranda and Arizona inflammatory. mannequin, maché would be understanding said waive ingly and with Notwithstanding inflammatory possible its the use of the rights.” alleged He nature, every of proba- the exhibit met test the rights “under statements violated visually tiveness. The demonstrat- exhibit V, Article Constitution of the United States ed the nature and location of various * * 1, XLV, VI and and Article Section [sic] Jones, v. wounds inflicted. State 515 I, 19.” Missouri Constitution Article Section 504, (Mo.1974); Wal- S.W.2d 506 State v. hearing chambers The court conducted lace, 67, (Mo.1973); 72 S.W.2d State on the issue of the voluntariness Whiteaker, (Mo.1973). S.W.2d to Officer Cline after statements made It to better under- jury also enabled the found that “the defend- expressly which it witnesses, stand the facts elicited from the voluntari- intelligently, and knowingly, ant Crow, (Mo. State 486 S.W.2d silent,” that right to ly the remain waived Perkins, 1972); State v. “voluntarily given,” and the statement was (Mo.1964), the testimo and corroborated will be admissible.” that “the statement ny of the witnesses. v. Wal State’s started Subsequently, and before trial Jackson, lace, supra p. and State hearing the trial court conducted another (Mo.1973). In addition Ex jury as to presence out of the hibit 4 demonstrative evidence constituted by appel- voluntariness of the statements which, jury appellant Mullen, determined that held lant Officer and the court to homicide, spontaneous, would aid the to been “a perpetrated the statement have * ** not as voluntary statement determining the intent with which interrogation.” result of committed, for that the homicide was position to was in a better reason motion to appellant’s note here We should appellant determine whether contention that suppress based on the murder, second de- guilty found making he had prior to the statements murder, gree manslaughter, all of which warnings required by Miran given been subject Arizona, of an instruction to the 384 U.S. S.Ct. da v. In (1966).2 his brief admits jury. L.Ed.2d to intended to refer we assume was Suppress It is true that in his Motion to * * * VI,” VI States Constitu- Amendment of the United reference was made to “Article question no that appellant agreed There is making of the statements prior any to rights,” and he “was advised of his Miranda test. Officer trip to and take the make the use appeal his contention on this is that him about question Mullen did not of the statements violated his constitutional Chambers, but on the return death of Glenn right to counsel. “talking general,” trip they were case,” stated he “about the We will consider first the statements he didn’t know if he “felt embarrassed and prosecuting attorney. made to the We do parents.” There was could face Glenn’s any not find that such statement was of Mullen testified at objection when Officer proof in evidence as of the fact relat fered statement to appellant made this trial that Appellant testify ed. elected to in his be contend on this him. does not half, and on cross-examination it was been ade- appeal previously he had not brought prosecuting attorney out rights” “Miranda of his quately advised July 1978. That had talked to him on counsel, to which included his was after he had been advised his Miran finding challenge the appellant does not rights approximately da two weeks be by appel- statement the trial court that this fore he with offense. spontaneous, Mullen was “a lant to Officer During prosecut- cross-examination the “the which was not voluntary statement” ing attorney attempted impeach appel- interrogation.” We find no denial result of by asking lant whether he had made certain of his constitutional her, making statements but he denied by use of this volunteered state- counsel every each and statement the fol- ment. (a) lowing: he admitted that he told the prosecutor that he wanted to talk to her final statements to consider alone family rather than with his After are those made to Officer Cline. room; (b) he admitted that in the discussion appellant made the statement volunteered brought up he first the name of Jeannie Mullen, the Officer told him that Officer *6 West; (c) he admitted that he stated that type the of individual he Officer Cline “was only person he had one who rode from to,” “good person,” could talk that he was Mexico to Columbia with him. There was “if he would talk appellant and he asked objection no inquiries to these on the basis Cline was with Tom.” At the time Officer that the use of the were statements made sheriff, and he was en deputy the chief right violation of his to counsel. Assum- of the death of gaged investigation ing that for some reason it was improper to Glenn Chambers. permit the questions brought which about answers, appellant above makes no at- 24,1978, evening, of June Officer On tempt why to demonstrate or in way what appellant’s Cline went to home and asked they prejudicial addition, were him. to In accompany him to of- him to the sheriff’s these solely statements were used fice, appellant which did. Officer Cline tes- impeachment purposes permis- which was a response objection tified that in to without York, sible use. Harris v. New 401 U.S. his whereabouts questions, appellant related (1971). L.Ed.2d We S.Ct. following evening. previous on the On attempted impeachment conclude that this reported Mullen to Officer day after Officer did not result in a of appellant’s denial to talk to him appellant Cline that wanted right constitutional to counsel. appellant. to Officer again alone he talked Miranda warn- appellant to We will next the state Cline read consider appel- the advice that 25,1978 ings, which included ments to Officer Mullen. June On lawyer talk to a and to by right Mullen took automo lant had the to Officer being ques- test. while he was City polygraph present bile to Jefferson for a have him appellants among things of the statements guarantees that use violated other tion which right right counsel was not as to of an accused to have the assistance to advanced the claim Officer Cline. counsel for his defense. But at trial counsel, right waived his to he had Appellant acknowledged tioned. Third, majority he or held. and he stated that at least the so rights, understood in- appellant had been to Cline. He made officers knew that wanted talk to Officer not make state- by he structed counsel to objection questioning, ment, agreement an between lawyer present. there was request made no counsel that appellant’s the officers and contend that was Appellant does not interrogation. be no These there would right of his to have adequately advised not exist case. do desired, circumstances and he does not present counsel However, was the Brewer case it stated challenge findings specifically granted by the that “the to counsel to trial the statements he made court means and Fourteenth Amendments Sixth given,” and “voluntarily Officer Cline were help is person at entitled to the least that intelligently, that he voluntari- “knowingly, judi- time that lawyer of a at or after the ly silent.” waived the remain against initiated cial have been proceedings appel- as when The record not clear charge, by way of formal him-whether represented lant first was counsel. indictment, hearing, informa- preliminary testimony There is no as to this. direct ” v. tion, Kirby arraignment.’ See early on June Officer Cline testified that Illinois, U.S. S.Ct. 25,1979, gone appellant’s mother had appel- time that (1972). At the L.Ed.2d 411 jail, “she had either and he had heard that Cline lant made the statements Officer thinking was about retained Bear] [Mr. proceedings ini judicial had there been no retaining At time Officer [him].” State, against See Arnold tiated him. conducting general investiga- Cline Pe (Mo.1972), homicide, were no tion of and there (Mo.1972). It trechko, Although appellant. charges against filed the statements also clear that the time not, technically un- speaking, appellant was including police, made the Officer were arrest, der that he may be assumed investiga Cline, in routine engaged custody. resulted in tion of a homicide ap- was asked what When Officer Cline Chambers. death Glenn interview, pellant objec- said at the second Illinois, the court com- Kirby supra, In tion the officer was made “for the reason asked to we are mented: “In this case fact was aware of the the defendant investigation an impart police a routine into “the attorney” had officer employed an guarantee [right absolute constitutional repre- attorney had been advised rationally applica- historically and counsel] course, him, officer knew senting and of *7 prosecu- onset of formal only ble after the present.” right had a to be The [counsel] so. decline do proceedings. We torial overruled, objection and the officer was States after Wade year Less than a [United by to him made then related statements 1926, 18 Wade, 218, 87 S.Ct. 388 U.S. concerning activity near the appellant (1967)] and Gilbert 1149 [Gilbert L.Ed.2d homicide, he also related of time 1951, 18 California, S.Ct. 388 U.S. a indicated homo- some statements which decided, (1967)] were L.Ed.2d 1178 Chambers. relationship with Glenn sexual decisions of those explained the rule Court primarily on Brewer v. cases Appellant relies of those ‘The rationale follows: Williams, 51 to counsel U.S. S.Ct. is entitled that accused an (1977). L.Ed.2d 424 We need review prosecution,” any stage of “critical case, lineup the facts but there are at least such post-indictment of ’ * * * de- important which result in We decline to stage.” three differences “critical First, controlling. today by imposing being that case not part from that rationale testimony upon per exclusionary had been se rule Brewer case defendant place adversary that took manner identification arraigned, concerning and in that Second, any pros- of there the commencement proceedings long had commenced. before applica- rationale for finding that ecution whatever.” was no reasonable basis BARDGETT, J., ble to the to counsel at C. concurs and concurs right lineup held SEILER, concurring opinion prior any prosecu- separate to the commencement J. applies equally tion as well to the constitu- right during
tional of counsel routine inves- DONNELLY, JJ., not sit- MORGAN and tigation prior to the commencement of ting. State, prosecution. also Morris v. See concurring. SEILER, Judge, (Mo. 1976). banc S.W.2d 455 Brewer v. affirming I of the While concur Williams, supra, provide does not per for a sentence, I judgment conviction and se rule of by exclusion of statements made following. necessary deem it to add appellant to under the Officer Cline circum- us was The defendant in the case before stances of this case. capital murder and con- with In any interrogation appellant custodial was life by jury. victed The sentence was entitled to receive the “Miranda warn- parole probation fifty years. without ings” which included right to counsel 565.014.3(3), provides RSMo Section and to present during have counsel custodi- the death penalty in cases where Therefore, al interrogation. if the state- assessed, court is to one of the duties of this ments should not have been admitted in “[wjhether the sentence of death determine evidence it is because the “Miranda warn- pen to the disproportionate is excessive or ings” given, given, were not or if they were cases, considering alty imposed in similar because did not voluntarily and By both the crime and the defendant.” right waive his intelligently to counsel dur- us, imposing upon legislature duty ing interrogation. custodial attempting comply with the consti risk of arbi requirements tutional that the It is clear warnings” the “Miranda trary capricious application once, given were to appellant; only penalty death minimized and that con prior several times interrogation by individual circumstances sideration of the Cline, noted, Officer and as previously ap- given. crime be each offender and each pellant does not specific challenge make a Gregg Georgia, 428 U.S. 96 S.Ct. findings of the trial court that (1976); Woodson v. L.Ed.2d statements “voluntarily given” Carolina, 428 North U.S. S.Ct. “knowingly, intelligently, (1976); 49 L.Ed.2d State ex rel. West and voluntarily right waived the to remain Mason, (Mo. banc fall v. silent.” Our careful review of the record 1980). case the particular While in this results in the same conclusion as that (with- prosecutor penalty waived the death by reached the trial court. giving explanation), out reason or was advised of his with our statute and make comply order counsel and of his to remain silent. comparison, we must know required He knowingly, intelligently, voluntarily are in murder convic- what the facts right. waived that Under the circumstanc- penalty death was not tions for which the es of this case the admission into evidence assessed, for which it as well as in those statements made him to Officer was. *8 Cline did not violate constitutional therefore, reason, though even For this right to counsel. challenge defendant does not the sufficien- evidence, make a judgment cy necessary
The is affirmed. of the it is complete more of the facts as to statement the crime and the defendant. RENDLEN, HIGGINS, WELLIVER and Defendant, man, twenty-two a black JJ., WELBORN, Special Judge, concur. trial, of which years age of the time SEILER, J., separate high concurs in concur- He had a started March ring opinion filed. was em- school education. The defendant report require we the trial The which
ployed as a nurse’s aide at the Ellis-Fischel Columbia, judge where he to make in a murder case Hospital Cancer course, pleaded while, statutory no showing He had of night worked the shift. were instructed stealing aggravating of circumstances charge under guilty (as there was victim, Chambers, upon and found also The Glenn $50.00. or inno- death, guilt on the trial black, age at his years was sixteen heading issue), listed under cence was evidence that June 1978. There in- circumstances non-statutory aggravated relationship be- there was a homosexual evidence, following: by the dicated defendant “had been tween them and that times” and that some 60 “Victim stabbed approximately with” for going Chambers statutory or non- was no there evidence 20, 1978, years. Tuesday, five On June circumstances. Under statutory mitigating crime, told three defendant days before the victim was to whether heading as him that who to work with witness rode report or tortured physically harmed he to be smart” and “trying Chambers 60 times.” The some shows “Yes. Stabbed Defendant, “was him.” when going to kill fore- reported the evidence judge trial lie, told why, asked said had Chambers guilt regarding defendant’s closed all doubt say what it was. Defendant would not sen- judge) “felt the (the and that he trial said to “make a date” with going he was acceptable.” tence was nothing wrong the victim going to then that he and his cousin were ice by stabbing
kill Chambers him with an
pick sixty some odd times. day again
The next defendant said going
and his cousin were to kill Chambers witness The told defendant weekend. surely go as he would kill Chambers Revenue, GOLDBERG, penitentiary to the it. Director of Gerald Missouri, Petitioner, State of getting into defend- Chambers seen evening. ant’s the next Cham- automobile day body
bers’ was found the next near HEARING COMMIS- ADMINISTRATIVE down, on the bridge, face Littleby Creek Horn, MISSOURI, C. Michael SION ground Armco, Inc., Commissioner, Respon- autopsy dents. performed doctor who body sixty-four found wounds No. 61649. one-thirty-second he estimated to be Missouri, Court of Supreme He one-eighth of an inch in diameter. En Banc. ice type of wound as an characterized separate nine pick wound. There were 12, 1980. Nov. heart, through one wound wounds 15, 1980. Rehearing Dec. Denied aorta, pulmonary to the one wound two lobes of the liver artery, to the lungs and other
multiple wounds opin- In the doctor’s
portions body.
ion, were fatal to the heart the nine wounds were the cause death. nature and He denied person. testified
Defendant having any such
being a homosexual or
relationship He denied with the victim. threatening kill the victim.
killing
His alibi. defense