Kircher v. State, 97-KA-01120-SCT.

• Decision Date: 14 October 1999
• Docket Number: No. 97-KA-01120-SCT.,97-KA-01120-SCT.
• Citation: 753 So. 2d 1017
• Parties: Neil KIRCHER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

753 So.2d 1017

Neil KIRCHER v.STATE of Mississippi.

No. 97-KA-01120-SCT.

Supreme Court of Mississippi.

October 14, 1999.

Rehearing Denied January 13, 2000.

W.E. Gore, Jr., Jackson, Vaughn Davis, Jr., Madison, Attorneys for Appellant.

Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.

EN BANC.

SMITH, Justice, for the Court:

¶ 1.This case comes to this Court on appeal of Neil Kircher from the Rankin County Circuit Court, where Kircher was convicted for the murder of Bob McCrary, an employee of the Rankin County Sheriffs Office, who pursued Kircher after Kircher stole a knife from the Jitney Jungle and a vehicle in which the keys had been left from that same parking lot.He was sentenced to a term of life in the custody of the Mississippi Department of Corrections.Kircher filed a motion for new trial, which was denied by the trial judge, thus prompting this appeal.

¶ 2.This Court, having carefully considered the issues raised by Kircher, finds no merit to his claims.Two of the issues raised warrant little discussion.However, we find that Kircher's claim that the trial court erred in failing to suppress his confession, given to law enforcement officers while in the emergency room, warrants close scrutiny.We note that the trial court applied the proper legal standard, considered the totality of the factual circumstances, and correctly held that Kircher's confession was admissible.O'Halloran v. State,731 So.2d 565(Miss.1999).

¶ 3.This issue is close, and law enforcement officers are advised to always use caution when attempting to take a statement under such circumstances.However, having intensely examined this record, we cannot say that the trial judge's ruling allowing admissibility of the emergency room confession, resolved on conflicting evidence considering the totality of the circumstances, was manifest error.Nor do we find that his decision was contrary of the overwhelming weight of the evidence.Wright v. State,730 So.2d 1106, 1108(Miss.1998).Generally, this Court must affirm the trial court under such proper application of the correct legal standard and findings based on the totality of the circumstances considering the disputed evidence offered by both the State and the defense.Stokes v. State,548 So.2d 118, 122(Miss.1989).We therefore affirm the trial court.

STATEMENT OF FACTS

¶ 4.Neil Kircher(Kircher) was a voluntarily admitted patient at COPAC, an inpatient drug and alcohol treatment center located in Rankin County.On August 28, 1995, Kircher, along with other COPAC members, was taken to the Jitney Jungle grocery store on Spillway Road in Rankin County.While at the Jitney Jungle, Kircher noticed a vehicle in the parking lot with the keys still in the ignition.Kircher entered the Jitney Jungle to purchase groceries.After purchasing groceries with other residents, Kircher went back into the store alone and stole a butcher knife.He then stole a Ford truck from the parking lot which had the keys left in the ignition.

¶ 5.Bob McCrary, shop foreman with the Rankin County Sheriffs Department, was in pursuit of Kircher shortly after being notified of the stolen vehicle.After a short chase, Kircher stopped the stolen Ford truck.Kircher sped off again, but could not out run McCrary, and Kircher stopped again on the roadside.McCrary also stopped his vehicle and remained in radio contact with other officers.Shortly thereafter, McCrary was stabbed by Kircher with a butcher knife.McCrary radioed the other officers informing them that he had been stabbed.

¶ 6.Kircher then drove to another area of Rankin County where he stopped near a church.Kircher exited the stolen vehicle and ran into a cotton field.While in the cotton field, Kircher stabbed himself twice; once in the chest and once in the abdomen.Additional Rankin County officers, as well as other law enforcement deputies, immediately appeared on the scene, arrested Kircher and called for an ambulance.

¶ 7.Chief Investigator Ronnie Pennington, with the Rankin County Sheriffs Department, arrived on the scene.Pennington asked the other deputies if any kind of weapon had been found, whereupon Kircher simply responded to the question volunteering that the weapon was in the yard.Pennington saw an unidentified object in the direction that Kircher had related the weapon was located.Pennington immediately went to that area to which Kircher had directed him and found a bloody shirt and a butcher knife.These items were sent to the crime lab for analysis.The butcher knife was similar to a knife that was sold in Jitney Jungle.The ambulance arrived and transported Kircher to the hospital.

¶ 8.Upon arriving at the emergency room, at 1350 hours Kircher was treated and prepared for surgery.It appears from the record that Kircher was in the emergency room for at least one and a half hours.A blood sample from Kircher was secured.

¶ 9.Officer Pennington had immediately followed the ambulance to the emergency room.Officer Pennington saw the emergency room doctor as he arrived at the door to the emergency room.Officer Pennington asked the physician, Dr. Stephen Chouteau, "if he[Kircher] was in any kind of shape for me to talk with him."Dr. Chouteau replied, "Sure."

¶ 10.Dr. Chouteau testified that at the time he authorized Officer Pennington to speak with Kircher, Kircher was stable, alert, and oriented, and that Kircher was not in shock.Dr. Chouteau testified that upon admission, Kircher's blood pressure was 100/60, but that later, while Kircher was still in the emergency room, his blood pressure was 135/70.Dr. Chouteau, when asked how much blood was given to Kircher, stated, "I believe he got one unit or one started.And after one was given he— may have actually started on two."Dr. Chouteau opined that, [Kircher]"stabilized fairly quickly in the emergency room."Exhibit D4 to the record reflects that Kircher, "did not require anymore blood transfusions postoperative."When asked about when Kircher was administered morphine sulfate, Dr. Chouteau stated, "I did not, not in the emergency room.I saw there was a notation for morphine in one of the ICU notes."Dr. Chouteau opined that Kircher had the capability to understand questions or statements read to him and questions asked of him at that time.Hospital records reflect that there was no internal damage to any of Kircher's vital organs.

¶ 11.Marianne Rainer, a registered nurse, who attended Kircher in the emergency room, testified that during the approximate one and one-half hours that Kircher was in the emergency room, she had "one on one" contact with him.She stated that Kircher was "a very nice young man, very composed, quiet, cooperative, very polite, did not appear to be upset, and that he reacted and answered all questions readily with pertinent answers."She opined that Kircher was "not in distress, was not hypertensive and was not in shock."She also corroborated that she heard Officer Pennington advise Kircher of his Miranda rights.

¶ 12.As noted, Officer Pennington sought the attending doctor's permission to speak with Kircher.Before Pennington spoke with Kircher, Deputy Bradshaw, also of the Rankin County Sheriff's Department, handed the Miranda card to Pennington.Officer Pennington then proceeded into the room with Kircher.Officer Pennington introduced himself and the three other officers.Pennington then asked Kircher if he was willing to talk about the things that happened earlier that day.Kircher answered affirmatively, to which Officer Pennington responded by saying, "Well, before you do, let me advise you of your rights."Pennington testified that he asked Kircher if he understood the rights read to him.Kircher responded that he understood the rights as read to him.Kircher answered Pennington's questions regarding the events of earlier that day.The testimony of Officer Pennington regarding the communications with Kircher was corroborated by the testimony of the other three officers present at the confession.

¶ 13.Officer Pennington testified that, after being advised of his rights, Kircher admitted that he had stolen a knife, stolen a truck, and had noticed a vehicle following him as he drove along the highway.Kircher tried to outrun the vehicle, but could not do so.Kircher stopped his vehicle once, and the vehicle that was following him also stopped.Kircher "gave it the gas" and again tried to outrun the vehicle which continued to follow him.He was unable to outrun the vehicle and pulled over to the side of the road for a second time.The truck that was following pulled in behind Kircher's stolen truck.Officer Pennington then related that Kircher stated "he pulled the knife out and stabbed the subject.""His [McCrary's] vehicle was still in gear, and he give it the gas.He[Kircher] said he was holding onto the open window; and as the truck was trying to get away, he stabbed him several more times."Kircher stated that he did not know the person in the truck was a sheriff's officer, and he admitted that the person was unarmed.Kircher also admitted that he had stolen the knife from of the Jitney Jungle store shortly before the killing.Officer Pennington stated that the entire conversation with Kircher took only approximately five minutes.

¶ 14.The State's case in chief proceeded with the testimony of other officers regarding the crime scene.Then, Michael Atkinson, an employee of COPAC, testified that he transported Kircher and other residents to the Jitney Jungle store on August 28, 1995.

¶ 15.Richard Fisher, an employee of Jitney Jungle, testified that he had previously identified Kircher from a six picture pictorial lineup and also identified him at trial as being the person who came back into the store alone and asked where the knives were located.

¶ 16.Charles Smith, testified that he was driving the Ford truck, owned by Thorn Construction Co. which was stolen from the parking...