State v. Battle, 63436

• Decision Date: 22 November 1983
• Docket Number: No. 63436,63436
• Citation: 661 S.W.2d 487
• Parties: STATE of Missouri, Respondent, v. Thomas Henry BATTLE, Appellant.
• Court: Missouri Supreme Court

Page 487

661 S.W.2d 487

STATE of Missouri, Respondent, v. Thomas Henry BATTLE, Appellant.

No. 63436.

Supreme Court of Missouri,

En Banc.

Nov. 22, 1983.

Rehearing Denied Dec. 20, 1983.

Mark S. Fredman, St. Louis, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

BILLINGS, Judge.

Defendant Thomas Henry Battle was convicted and sentenced to death for the capital murder of an 80-year-old woman. He contends the death sentence violates the Missouri Constitution, his inculpatory statements were unconstitutionally tainted and improperly admitted at trial, the trial court erred in the jury selection process and instructions to the jury, the trial court should have declared a "hung jury" during the penalty phase of the trial, and, lastly, the death sentence should be set aside because it was imposed under the influence of passion and is excessive and disproportionate. We affirm.

Miss Birdie Johnson, 80, lived alone in her St. Louis ground floor apartment. Defendant, 18-years-old at the time of the murder, lived with his parents in a nearby apartment. From time to time defendant, called "Sweetboy" by Miss Johnson, had performed odd jobs for the elderly lady.

About 2:30 or 3:00 a.m. of July 5, 1980, defendant and Tracy Rowan were in defendant's bedroom "drinking a couple of beers and getting high." Defendant suggested they burglarize Miss Johnson's apartment. They walked over to the targeted apartment and gained entry by climbing atop a fence, ripping the screen from an open kitchen window, and climbing through the window. Defendant led the way and as he went through the kitchen he picked up a twelve-inch butcher knife.

There was substantial evidence from which the jury could find that defendant and his companion raped Miss Johnson, that she was brutally beaten, and the apartment was ransacked for money and valuables. When Rowan turned on a light, defendant announced, in Miss Johnson's presence, that she would have to die because she had seen them. Defendant commenced stabbing the elderly, naked, beaten and ravished woman with the butcher knife. Because the knife kept bending, defendant finally plunged the blade into Miss Johnson's face, just under her left eye. She was still alive, with the knife protruding from her face, "talking and saying short prayers", when defendant and Rowan exited the apartment by way of the kitchen window.

Sometime between 3:00 and 4:00 a.m., Miss Johnson's upstairs neighbor was awakened by knocking sounds coming from downstairs. The neighbor went down to Miss Johnson's apartment and when she heard Miss Johnson calling, broke the front door and entered. The bleeding, aged victim was sitting naked on the floor, with the butcher knife sticking out of her eye socket. Police and an ambulance were called. Miss Johnson was awake and alert but suffering from shock when she was taken to a hospital. She died at 5:45 a.m. Death was attributed to a combination of the following injuries: severe trauma and bruising of her head, resulting in cranial hemorrhaging; multiple bruises and contusions to her face and body; multiple incisions and lacerations to her chest and back from the knife; eight rib fractures; multiple lacerations of the lung; an injury to the brain from the facial stab wound; shock caused by extreme loss of blood and pooling of two-thirds of the body's total blood supply in the right chest cavity.

We have previously rejected defendant's contention that the death sentence violates the "natural right to life" provision as expressed in Art. I, § 2, Mo. Const. State v. Williams, 652 S.W.2d 102 (Mo. banc 1983); State v. Bolder, 635 S.W.2d 673 (Mo. banc), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1982); State v. Newlon, 627 S.W.2d 606 (Mo. banc), cert. denied, 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149 (1982). The point is denied.

Defendant avers the admissions and incriminating statements he made on a cassette tape recording and video tape should have been suppressed by the trial court because they resulted from violations by the police of the constitutional guarantees found in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Further, considering the totality of the circumstances, his admissions and confessions of guilt were coerced and rendered involuntary.

The trial court conducted a lengthy evidentiary hearing on defendant's motion to suppress his incriminating statements. ¹ Defendant, in response to leading questions by his attorney, testified that before the cassette and video tape statements were made that he asked the interrogating officers if he had to answer questions and if he could see a lawyer, but the officers ignored his inquiries and continued to question him and make the tapes.

The State's evidence at the suppression hearing was as follows: During the course of the investigation of the murder of Miss Johnson the police received information that a person named Elroy Preston might have been involved. Preston was picked up July 15, 1980, and told officers he, defendant, and Tracy Rowan had been out drinking at the time of the murder. To check Preston's alibi, officers attempted to locate defendant the same day. Defendant was not at home and the officers left a message with his parents for him to call them. Later in the day, defendant telephoned one of the officers and told him he was willing to cooperate and would talk to them the next morning if someone could pick him up.

Between 9:30 and 10:00 a.m. the next morning, July 16, Detective Scaggs drove by defendant's home and picked him up. At about 10:30 a.m., Sergeant Riley, Detective Scaggs and two other officers began interviewing defendant in the homicide office. ² The officers testified that at this time defendant was not a suspect in the murder and was not under arrest. As the officers talked with defendant about Preston's story, he became visibly nervous--fidgeting and twisting a small towel he had with him. About fifteen minutes after the interview commenced, defendant leaned back in his chair with his legs outstretched. Sergeant Riley noticed that the tread pattern on defendant's tennis shoes looked like a shoeprint found at the murder scene, a photograph of which Sergeant Riley had before him. Riley halted the interview and advised defendant of his Miranda rights. Defendant waived those rights and signed a written consent to be fingerprinted and voluntarily surrendered his tennis shoes.

Approximately an hour after the fingerprinting process had been completed, defendant was returned to the homicide room where Riley told him, correctly, that his palm print and shoes had been found to match a palm print and shoe print discovered in Miss Johnson's apartment after the murder. Defendant at first denied any participation in the murder and claimed he had not been in the victim's house since the previous winter. Shortly thereafter, defendant said: "Man, I've got to tell the truth about this thing." He agreed to make a tape recorded statement. He was given a written Miranda waiver form which he read, initialed each warning, and signed at 12:35 p.m. At the beginning of the taped statement he was again advised of his Miranda rights and again waived these rights. He admitted he and Rowan had broken into Miss Johnson's apartment but stated the murder was committed by his companion without his knowledge or participation. Noting defendant's account of what happened was inconsistent and at times incredible, Sergeant Riley challenged the story in various aspects. When the tape was stopped to change sides, Sergeant Riley told defendant: "You've been a man up to this point. Why don't you be a real man and tell exactly what went down." Defendant agreed to do so and he then confessed to the murder of Miss Johnson.

After the cassette tape statement had been completed, the officers asked defendant if he would give his statement on video tape. He agreed. Enroute to the video taping studio, defendant was given and ate two sandwiches and drank a soft drink. The video tape commenced at 2:17 p.m. Again, defendant was given and waived his Miranda rights. He repeated his admission that he murdered Miss Johnson.

The officers testified that at no time was defendant threatened, coerced or made any promises regarding his statements. By the time the video tape was completed the defendant had been given and waived his Miranda rights four different times ³ and made no request for an attorney at any time. ⁴

In our review of the trial court's determination of defendant's motion to suppress the cassette tape and video tape, the weight of the evidence and credibility of the witnesses are questions for the trial court's resolution and we are not confined to defendant's version of the facts. Furthermore, we are not to disturb the rulings of the trial court where it is supported by substantial evidence. State v. Boggs, 634 S.W.2d 447, 453 (Mo. banc 1982); State v. Baker, 636 S.W.2d 902 (Mo. banc 1982), cert. denied, 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983).

On the record in this case we find no error in the admission of the cassette tape and video tape. The testimony of the officers, the execution of the waiver warning form, the transcripts of both tapes, and defendant's trial testimony clearly show he was given multiple Miranda warnings and repeatedly waived them. On defendant's second prong of attack, that the totality of the circumstances demonstrate coercion, there is substantial evidence to negate this charge. Defendant had completed the eighth grade in school, was no stranger to police questioning, was not denied food, and not threatened or made any promises before making the taped statements. We are of the opinion that the State carried its burden of proving the voluntariness of the defendant's incriminating statements by a preponderance of the...