646 S.W.2d 82 (Mo. 1983), 63513, State v. Groves

Docket Nº:63513.
Citation:646 S.W.2d 82
Party Name:STATE of Missouri, Plaintiff-Respondent, v. David A. GROVES, Defendant-Appellant.
Case Date:February 23, 1983
Court:Supreme Court of Missouri

Page 82

646 S.W.2d 82 (Mo. 1983)

STATE of Missouri, Plaintiff-Respondent,


David A. GROVES, Defendant-Appellant.

No. 63513.

Supreme Court of Missouri, En Banc.

February 23, 1983

Page 83

Gary L. Gardner, Asst. Public Defender, Kansas City, for defendant-appellant.

John Ashcroft, Atty. Gen., Joseph Colagiovanni, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

ROBERT G. DOWD, Special Judge.

Defendant David A. Groves was convicted by jury of the capital murder of Kevin Wilborn in violation of § 565.001 RSMo 1978 and sentenced to life imprisonment without probation or parole for 50 years. § 565.008(1) RSMo 1978. For reversal defendant contends the trial court erred in admitting into evidence his confession to the murder of Wilborn as the state failed to show compliance with the guidelines set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Specifically, defendant argues that one of the officers giving the Miranda warnings omitted the one element advising him that anything he said could and would be used against him, thus rendering the confession in question inadmissible.

Defendant candidly admits this contention was not preserved for appellate review. The record reflects that there was no objection to the introduction before the jury of the confession as involuntary, that no circumstances existed to cause an awareness that counsel was questioning inadmissibility on this ground, and that defendant did not allege the admission of his inculpatory statement as error in his motion for new trial which was untimely filed. However, the constitutional implications of this point argue in favor of looking at it under the auspices of the plain error rule. State v. Shives, 601 S.W.2d 22, 28 (Mo.App.1980); State v. Garrett, 564 S.W.2d 51, 52 (Mo.App.1978). As such, the defendant bears the burden of demonstrating that the action of the trial court resulted in manifest injustice or miscarriage of justice. See State v. Berry, 609 S.W.2d 948 (Mo. banc 1980); Rule 29.12(b) VAMR. After a review of the record in its entirety we find no such error and affirm the action of the trial court.

On June 15, 1980 defendant went to the trailer home of Hubert Porter and witnessed Porter screaming and threatening to kill the decedent Wilborn. Out of the victim's presence, Porter offered defendant $100.00 to kill Wilborn and supplied him with a .410 gauge shotgun and some shells. Defendant left Porter's trailer with Wilborn, drove around for a few hours and bought him food trying to gain his confidence. Defendant then returned to Porter's residence and informed him he was waiting for the right moment to kill Wilborn. Shortly thereafter the defendant and Wilborn drove across a field to a wooded area. As Wilborn started to set up some beer cans for defendant to shoot at, defendant shot him once and then missed with a second shot. When Wilborn tried to escape, defendant beat him over the head with the butt of the shotgun, causing it to break. Wilborn died from the combined effects of "blood force" injuries to his head with a skull fracture, bleeding in the head, and a brain injury.

Defendant was implicated by Hubert Porter and arrested on June 27, 1980. When he was questioned some 5 1/2 hours later defendant confessed to the crime. He claimed he enjoyed every minute of it and that he did not kill Wilborn for the $100.00 but because he was a "fag". He also informed the police that the broken shotgun Porter had given him was in a paper sack at his mother's house, and that he had wanted to keep it as a souvenir to remind him he had killed somebody. Defendant also drew the police a diagram of his mother's house. The police found the shotgun in question and determined it had fired the two spent shotgun shells found near Wilborn's body. Additionally, forensic evidence introduced at trial placed hair and blood from the victim Wilborn in defendant's auto. At trial defendant denied both killing Wilborn and confessing to the police. However, he did admit to informing the police of the shotgun's location.

The record indicates that the defendant was informed of his Miranda rights on two separate occasions. When defendant was arrested he was given his Miranda warnings

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by a Detective Luckmun while in Detective Miller's presence. The sufficiency of these warnings was never questioned by the defendant. Defendant was again informed of his rights when Detectives Smith and Rogers removed him for questioning from the city jail some 5 1/2 hours later. The following...

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