State v. Aikens

• Decision Date: 10 August 1999
• Citation: 3 S.W.3d 792
• Parties: (Mo.App. W.D. 1999) State of Missouri, Respondent, v. Levar C. Aikens, Appellant. WD55322 0
• Court: Missouri Court of Appeals

3 S.W.3d 792 (Mo.App. W.D. 1999)

State of Missouri, Respondent, v. Levar C. Aikens, Appellant.

WD55322

Missouri Court of Appeals Western District

08/10/99

Appeal From: Circuit Court of Jackson County, Hon. Kenneth P. Dean, II

Counsel for Appellant: Emmett D. Queener

Counsel for Respondent: John M. Morris

Opinion Summary: Defendant Levar Aikens appeals his convictions for first degree murder and armed criminal action in the killing of his mother, in violation of Sections 565.020.1 and 571.015 RSMo 1994, for which he was sentenced to concurrent terms of life imprisonment without the possibility of probation or parole, and life imprisonment, respectively. On appeal, Defendant alleges the trial court erred in admitting hearsay testimony as to statements made by the victim in the weeks before her death, and that the trial court erred in denying his motion to suppress his statements to Detective Cowdrey because, he asserts, the way the statements were taken violated his Sixth Amendment right to counsel.

Division Two holds: The State concedes that the Statements complained of on appeal were hearsay and did not fit within any exception to the hearsay rule, but argues that any error in admission of this testimony is not preserved because the testimony came in without objection. This Court agrees. Where, as here, a timely objection is not made to the introduction of hearsay statements, any error in their admission is not preserved. Moreover, as a general rule, admission of hearsay does not constitute plain error in the absence of an objection. This Court finds no reason not to apply that rule here, particularly in light of the fact that the testimony was largely either cumulative of evidence otherwise properly admitted or was corroborated by Defendant's own testimony.

The trial court did not err in denying Defendant's motion to suppress statements he made to Detective Cowdrey during an interview that he claims was held in violation of the Sixth Amendment right to counsel. For an adult defendant, the Sixth Amendment right to counsel does not attach until an indictment or information has been filed. When, as here, the defendant is a juvenile certified to stand trial as an adult, however, the courts will consider the voluntariness of the waiver in light of the totality of the circumstances, even when the waiver was given prior to the time the defendant was charged. Here, the totality of the circumstances, including the fact Defendant's statements were made only after Defendant accurately and affirmatively told the detective that he did not have counsel and the fact that there was no duress or coercion, support the finding that the statements were voluntary.

Riederer, P.J., and Hanna, J., concur.

Laura Denvir stith, Judge

Defendant Levar Aikens appeals his convictions for first degree murder and armed criminal action in violation of Sections 565.020.1 and 571.015 RSMo 1994,¹ for which he was sentenced to concurrent terms of life imprisonment without the possibility of probation or parole and life imprisonment, respectively. On appeal, Defendant alleges that the trial court erred in admitting hearsay testimony as to statements made by the victim in the weeks before her death, and that the trial court erred in denying his motion to suppress his statements to Detective Cowdrey because, he asserts, the statements were taken in violation of his Sixth Amendment right to counsel. Finding that Defendant failed to preserve his objections to the hearsay statements now objected to, and that Defendant's Sixth Amendment right to counsel was not violated, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 12, 1996, workers from the Union Pacific Railroad found a suitcase containing the body of Yvette Aikens next to a shallow creek under a bridge. An autopsy revealed a bullet wound to the right side of her head and another bullet wound in her back. The medical examiner classified the death as a homicide.

Ms. Aikens was last seen by Leslie Sanderson, the manager of the apartment complex where she worked, on Friday, June 7, 1996, when she left work at 5:30 p.m. Ms. Aikens did not show up at work on Monday, June 10, 1996, and many tenants complained to him that the office had been closed all weekend, despite the fact Ms. Aikens had been scheduled to work both Saturday and Sunday. Mr. Sanderson received no answer when he called Ms. Aikens' house, and an unidentified male answered Ms. Aikens' cellular phone and said Ms. Aikens was unavailable.

Mr. Sanderson called the police on Wednesday, June 12, 1996, and filed a missing persons report after Ms. Bea Sanders, a friend of Ms. Aikens, called him to inquire about her absence. The Kansas City Police Department obtained a search warrant and entered Ms. Aikens' home that same day. Once inside, the police found blood-soaked towels in some trash bags on the front porch, a blood-soaked paper towel, a blood stain on the dining room carpet under an area rug, and a two-shot, single action, .38 caliber derringer pistol underneath the sofa. Tests performed at the Kansas City Regional Crime Laboratory revealed that the blood from the carpet, the foam padding from underneath the carpet, and the paper towels taken from Ms. Aikens' house matched a blood sample drawn from Ms. Aikens. A firearms expert testified that one of the bullets removed from Ms. Aikens' body matched bullets test-fired from the derringer retrieved from the house. The other bullet removed from Ms. Aikens was too damaged to make a comparison. In addition, the police found a note to the victim from her sixteen-year old son, Defendant Levar Aikens, in a trash bag in a storage area off the kitchen. In this letter, Defendant accused his mother of telling him he was worthless, and outlined his plan to transfer schools, to spend time with his friends and his girlfriend, and to play basketball. The letter further stated that Defendant would do whatever it took to "meet his needs," including taking his mother's car and her cellular telephone.

On June 13, 1996, Defendant was arrested at a motel. When he was arrested, Defendant was driving his mother's tan Mercury automobile and had his mother's cellular phone with him. Ms. Sanders later testified that Ms. Aikens did not allow Defendant to use her cellular phone, and that he had been forbidden to drive his mother's car since June 1, 1996. On June 14, 1996, 18 year-old Charles "Chuckie" Curry, an acquaintance of Defendant, was taken by his parents to the police station, where he told police that Defendant had confessed to him that he shot Ms. Aikens. That same day, police obtained a search warrant for the Mercury and processed the car with Luminol, a chemical that detects the presence of blood and causes it to luminesce. Test results confirmed the presence of blood on the interior of the trunk of the car.

On July 26, 1996, Defendant was certified to stand trial as an adult for the murder of his mother. After the certification proceedings, he was arrested and transported to the police station and placed in a cell. On August 16, 1996, Defendant was indicted for the first degree murder in the death of his mother, and for armed criminal action. Defendant went to trial on November 17, 1997. At trial, the State introduced the statements made by Ms. Aikens to Ms. Sanders shortly before her death. Ms. Sanders testified that she and her daughter had a close relationship with Defendant, and that she spoke frequently with her friend Ms. Aikens. Ms. Sanders also testified that Ms. Aikens told her about Defendant's behavioral problems, and her intent to place him in a residential school for troubled youth in Parkville, Missouri. Ms. Sanders stated that Ms. Aikens had kicked Defendant out of the house, and had then asked her for money with which to change the locks on the doors of her house to prevent Defendant from sneaking back inside. Ms. Sanders refused to give Ms. Aikens this money. Ms. Sanders also testified that when she first asked Defendant where his mother was after she had been missing a few days, Defendant told her that his mother had been killed by a carjacker. Later, he told Ms. Sanders that he thought that his mother's ex-boyfriend, Lloyd Dixon, had killed her. Ms. Sanders testified that on another occasion, Defendant wrote a letter to members of the Sanders' family stating that a drug dealer named "Marvin" had killed his mother.

Ms. Aikens' former boyfriend, Mr. Dixon, testified that she called him on June 6, 1996, asking him for money with which to change the locks on her house. He agreed, and the locks were changed that day. Mr. Dixon also testified that on Monday, June 10, 1996, he called Ms. Aikens' cellular phone number and discovered that her voice-mail message had been changed to a message recorded by Defendant.

Chuckie Curry testified that he and another friend were at Defendant's house when he observed Defendant lift up a rug on the carpet near the kitchen, exposing two large blotches of "red stuff." He testified that he watched Defendant put some paper towels on the spots, step on them, and then drop the rug over the paper towels. Later, Chuckie said, Defendant said that he had shot his mother twice. Chuckie identified the gun recovered by police as the same gun Defendant showed him when confessing. Mr. Ted Carter later testified that, approximately two days before Ms. Aikens was shot, he helped Defendant purchase a gun.

Detective Jeff Cowdrey testified that after Defendant was certified to stand trial as an adult, but before he was charged, the detective took Defendant into an interrogation room, and apprised Defendant of his Miranda rights. Defendant signed a Miranda waiver. Defendant stated that he had been advised by his juvenile attorney not to speak to the police, but that he was no longer represented by her, since he had been certified to stand trial as an adult. He told the detective that he did not have an attorney, and that he was willing to answer...