Defendant was found guilty of murder in the first degree by a jury which fixed his punishment at life imprisonment. His appeal was taken November 16, 1971, which vests jurisdiction in this court.
Questions raised on this appeal involve the admissibility of statements of the defendant to police, admissibility of evidence concerning the defendant’s intellectual ability as bearing on the voluntariness of his statements, and the action of the trial court in refusing to instruct on second degree murder and manslaughter. We grant a new trial on the basis that such instructions should have been given and recite such portions of the evidence as are necessary to а resolution of that issue.
At 4:25 A.M. on May 17, 1970, the St. Louis Police Department received a call reporting a death at 5925 Theodosia in the City of St. Louis. Officers went to the apartment at that address where they found defendant seated in the kitchen and the body of the victim, Pinky Herret, on a bed in a room adjoining thе kitchen. Subsequent examination disclosed multiple contusions of the face and scalp, chest and abdomen, plus a jagged laceration at the apex of the vagina which extended down to both femoral arteries on either side. Cause of death was described by the doctor who рerformed an autopsy as “trauma, external force, or laceration, whatever happened around her head and neck, with
When the officers arrived at the scene, defendant was 'somewhat nervous and, although not intoxicated, had been drinking. There was blood on some of his clothing which proved to be the same type as that of the deceased. He also had traces of blood on his hands but this was not analyzed or typed as to whether it was human blood. The apartment was found in a state of disаrray.
One of the officers, after reading the Miranda warning from a card which he carried, interrogated defendant at the scene. Defendant stated that he had been living with the deceased for about six years, that they had had several fights previously, and that they had a fight that night in which he had used his fists but did not recall using a knife.
Defendant was taken to police headquarters where at around 7:00 A.M. he was interrogated further after the Miranda warning was repeated.
At this time defendant told the officers that when Pinky Herret came home she had been drinking and he also had been drinking; that they continued drinking and that they got into a fight and he cut her several times with a small knife but he did not stab her. He stated that they then sat down at the kitchen table and Pinky wanted coffee and some hog’s head cheese. He went to the store and got them, after which they ate and then laid down on the bed for a while. He was awakened about 8:30 P.M. and got up and let Pinky’s son Michael into the apartment. He continued by saying that he went back to sleep and was awakened the next morning by the son turning on the kitchen light, and when that occurred he saw that Pinky was dead.
In the course of this interrogation the defendant began to cry and get upset, so Sgt. LaGates, who was interrogating the defendant, went and reported this to Sgt. Green. Sgt. Green came into the room and began to ask defendant as to his medical history, preparatory to taking him to the hospital. The defendant spoke up and said, “I loved her so much, I don’t know why I cut her.” The defendant was then taken tо the hospital for examination.
In addition to offering the testimony'of the officers as to what they observed at the scene and the statements made to them by the defendant, the State called Michael Herret, the 16-year-old son of the deceased. He testified that he had seen the defеndant at the Theodosia apartment at about 6:00 P.M. on May 16, 1970, and that defendant said to him at that time that he was going to kill Michael’s mother, Pinky. Michael testified that he left the apartment and went to his sister’s house to play cards. He returned about 8:00 P.M. and saw his mother in bed. He shook her but she only moaned and did not reply. He went out again and returned about 3:00 A.M. He saw the defendant and his mother in bed and noticed blood on the sheets. Michael went to .bed but about 4:00 A.M. the defendant awakened him and reported that his mother was dead and he was going to call the police.
Defendant testified on his own behalf. He stated that he arrived home at about 6:00 P.M. on May 16, and that Pinky arrived shortly thereafter. They talked of going out to eat but they then played some records and drank some beer and decided to have cold cuts at home instead of going out. Defendant went to the store to get the cold cuts and аlso brought back a six-pack of beer and a half pint of gin. They then ate, after which they laid down on the bed and went to sleep. Pinky awakened him later to let Michael in the apartment. The next morning he was awakened by Michael, at which time he discovered that Pinky was dead. He denied stabbing Pinky and аlso denied that he had told Michael that he was going to kill her.
The defendant also called Sgt. LaGates and developed testimony that Michael Her-ret had told the Sergeant that when he came in about 3:30 A.M., his mother was
We consider first the question of whether defendant was entitled to instructions on murder in the second degree and manslaughter. Both were requested, but the trial court refused to give them, explaining that in his judgment the evidence disclosed that the defendant was guilty of murder in the first degree or was not guilty at all.
This Court has held on numerous occasions that where the evidence points only to guilt of first degree murdеr, and not to any lesser degree of homicide, the court is not required to instruct on lesser degrees. State v. King,
The question we must resolve is whether this case is comparable to those represented by King, Terry and Crow. We conclude that it is not. Clearly, there was ample evidence in this case to justify the court in submitting the question of guilt of first degree murder. The nature and extent of the multiple wounds on the victim’s body, plus the testimony of Michael Herret that defendant told him earlier on May 16 that he was going to kill Michael’s mother, would support a verdict of murder in the first degree. However, there was other evidence which, if belived by the jury, would justify conviction of a lesser degree of homicide. The State’s evidence included statements or confessions from defendant in which he said that he and the victim had been drinking, that they had fought on various previous occasions, and had another fight that night in which he beat and cut Pinky Herret. Other evidence supporting the possibility that Pinky was injured in a fight (possibly a drunken one) was the testimony of the officers that when they arrived at the scene they found the apartment in disarray and observed that defendant had been drinking. From the foregoing evidence, admitted as a part of the State’s case, the jury could have found that Pinky Herret was wounded in a fight between her and the defendant and that there was an absence of deliberation on the part of the defendant, and perhaps an absence of premeditation or malice. It was for the jury to resolve the question of which versiоn to accept. Under such circumstances, instructions on murder in the second degree and on manslaughter should have been given in order to afford the jury that choice. State v. Williams,
In view of the fact that on retrial it seems apparent that the State again will offer testimony as to statements made by the defendant and that the questions of whether defendant was adequately warned as to his constitutional rights, whether what he said or did was sufficient to constitute a waiver of such rights, and whether such statements were voluntary will arise, we proceed to consider those questions.
We conclude, in the first place, that there was evidence of ample warning to the defendant as to his constitutional rights. Both at the apartment before defendant was ever interrogated and again at police headquarters a little later, the officers read the standard Miranda warning to defendant which advised him that he had a right to remain silent, that anything he said could and would be used against him in court, that he had a right to have a lawyer with him while he was being questioned, and that if he couldn’t afford a lawyer one would be appointed for him before any questioning.
There was also adequate evidence of conduct on the pаrt of the defendant which could be found to be a waiver by defendant of his constitutional rights. At the apartment, after Sgt. Tumminello read the Miranda warning, he asked defendant whether he understood what the officer had told him. The defendant answered that he did understand and thereafter when asked what happened, recited his first version of what had occurred. A little later at headquarters when Sgt. LaGates again read the Miranda warning to defendant and asked whether he understood, defendant replied that he understood his rights and wanted to make a statement. The foregoing evidence was sufficient to supрort the finding by the court that defendant waived his right to counsel or to remain silent. State v. Hughes,
With reference to the third statement to Sgt. Green in which defendant said, 'T loved her so much, I don’t know why I cut her,” there was no additional warning, but one was not required. The prior warnings given by Sgts. Tumminello and LaGates were sufficient to advise the defendant of his rights. State v. Smith,
Finally, we consider admissibility of evidence as to defendant’s mental capacity when offered with reference to a determination of voluntariness of defendant’s statements or confеssions.
At the hearing on the motion to suppress herein, the defendant called Dr. Jon Tek Lum, a psychiatrist from Malcolm Bliss Hospital. Dr. Lum had examined the defendant for the purpose of determining whether he was competent to cooperate with counsel and stand trial. The doctor filed a written report in which he concluded that while defendant was a moderately retarded patient and had some type of convulsive disorder, he was competent to stand trial and could not be found not guilty by reason of mental illness. No hearing on the doctor’s written report was held because сounsel for defendant did not contest the report or put in contention the defendant’s ability to stand trial or to cooperate with counsel.
During the actual jury trial, the defendant failed to call Dr. Lum as a witness but did seek to have the medical records librarian from Malcolm Bliss Hospital read into the record an unexplained and uninterpreted recitation from the defendant’s medical history that the doctor fоund that he had a low I.Q. The court sustained an objection to this evidence concerning the defendant’s I.Q.
In Coney v. State,
Also pertinent is our decision in State v. Deyo,
On retrial, the rule announced in these cases should govern admission of testimony of this character, whether offered in connection with a motion to suppress and a determination thereon by the judge under the rule announced in Jackson v. Denno,
Reversed and remanded.
Notes
. In connection with such jury submission, attention is called to MAI-CR 3.44 and the Notes on Use for said instruction.