State v. Boggs, 62271

CourtUnited States State Supreme Court of Missouri
Citation634 S.W.2d 447
Docket NumberNo. 62271,62271
PartiesSTATE of Missouri, Respondent, v. John E. BOGGS, Appellant.
Decision Date08 June 1982

Ben K. Upp, Springfield, for appellant.

John Ashcroft, Atty. Gen., Nancy Kelley Baker, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Convicted by a jury of murder first degree (felony murder), § 565.003, RSMo 1978, and sentenced to life imprisonment defendant appeals. Because of the sentence imposed, this Court has exclusive appellate jurisdiction. Art. V, § 3, Mo.Const.

Defendant asserts as error: (1) failure of the trial court to suppress his confessions allegedly obtained in violation of his right to counsel; (2) instructional errors; (3) insufficiency of the evidence to support the first degree murder conviction; and (4) improper denial of his application for change of venue.

In addition to the defendant's confessions, abundant evidence appears in the extensive trial record supporting the jury's verdict of guilt. On Thursday, July 5, 1979, Dr. and Mrs. Larry Dowell and their two sons lived in Strafford, Missouri, and Mrs. Dowell's parents, the Ralph Sharicks, resided in a trailer behind the Dowell home. That afternoon the Dowell family, with Mrs. Sharick, left for an overnight visit in Kansas City, but because of his arthritic condition, Mr. Sharick remained at home. When the family returned late Friday night, a number of lights were burning in the house and trailer, a screen had been torn from the doorway, the house ransacked, the telephone disconnected and four bullet holes were found in a closet door. Inside the closet Mr. Sharick's body was discovered slumped over in a chair. He had severe lacerations to his scalp and a bullet wound in his chest which caused his death. The chair in which Mr. Sharick was found had been splintered and a broken gun stock was near the body. A number of items including a saxophone, bass guitar, .22 rifle and shotgun were missing.

At approximately 6:30 p. m. on July 6, defendant, accompanied by Robert O'Neal, nicknamed Beaver, was seen in and about Strafford, Missouri, and was readily identified by several witnesses. For several days prior to the murder defendant had been traveling about in southwest Missouri and southeast Kansas where he had picked up his friend, O'Neal. On the evening of July 6, defendant and "Beaver" cruised the Strafford area searching for a suitable house to burglarize. They stopped at one place but refrained from attempting the crime when they saw a young man, Lloyd Hensley, whom they believed might resist. On the pretext of seeking directions, they spoke to Hensley, then left, proceeding in their quest. In passing, they noticed the Dowell residence was a large home and thought it might contain valuable loot. Entering the driveway and parking near the trailer they saw an elderly gentleman, Mr. Sharick, and asked him if anyone could drive them to town as their car was not running well. Unfortunately, Mr. Sharick replied that no one would be home until midnight, whereupon defendant and O'Neal made known their criminal intent. Apparently hoping they would leave, Mr. Sharick "offered" the contents of his wallet, but this did not deter their design. With Mr. Sharick in tow, the intruders searched the trailer, garage and main house, gathering loot which included a twelve gauge shotgun, some .22 shells, a rifle, bass guitar and saxophone. During this process the men tore the telephone from the wall. In his confessions defendant claimed they had planned to bind Mr. Sharick but because of his age and physical condition, placed him instead in a chair in the closet and closed the door. Defendant further maintained they had repeatedly assured Mr. Sharick he would not be harmed. About that time defendant went into another part of the house, but hearing three shots returned to discover O'Neal had shot the telephone. Resuming his search of the house defendant heard three more shots and ran to the room in which Mr. Sharick was closeted, where he saw O'Neal striking Mr. Sharick with what appeared to be a rifle. 1 In a brief struggle with O'Neal, during which defendant took the rifle from him, the closet door shut and defendant saw it was riddled with bullet holes. O'Neal then drew a pistol from his belt, which defendant stated he had not previously seen, and menaced defendant, but apparently tempers cooled. They decided to leave the premises, but before going, defendant opened the closet door and saw that Mr. Sharick was dead. Leaving the scene of the crimes, the men drove to a truck stop where they sold the two guns stolen from the Dowell residence, as well as other items, to witnesses who later positively identified both men. The purchasers subsequently learned of the crimes and became suspicious of the items they had bought. This led to contact with the local law enforcement officers and disclosure of defendant's name. Defendant and O'Neal were traced to Texas where defendant was arrested on Sunday, July 8th.

I.

Defendant first contends the trial court erred by not suppressing the confessions which he argues were obtained in violation of his right to counsel. 2 After an extensive evidentiary hearing, at which abundant evidence supportive of the trial court's ruling was adduced, defendant's motion to suppress was overruled.

Captain Charles Whitlow 3 of the Greene County Sheriff's Department, whose testimony with two other State's witnesses comprised the greater part of the suppression hearing evidence, was the officer in charge of the Sharick murder investigation. Because of the broad trail left by the suspects, defendant's and O'Neal's names soon surfaced. By July 8, charges of capital murder, burglary and armed criminal action were filed against defendant and, alerted that defendant was at a Fort Worth, Texas bus station, Whitlow phoned the Fort Worth police who detained defendant there. Captain Whitlow flew to Fort Worth, arriving about noon on Sunday, July 8th, met defendant and advised him he wished defendant to return to face a murder charge in Greene County. Defendant waived extradition. During the return flight Whitlow did not question defendant, and indeed, when he attempted to talk, Whitlow requested he wait. Defendant was incarcerated the night of July 8th in the Greene County Jail, and at no time on July 8 did he ask to use the telephone or request counsel.

On the morning of July 9, 1979, Whitlow took defendant from the Jail to the Sheriff's office where he was given the Miranda warnings and advised of his constitutional rights. He then asked to speak to an attorney. Whitlow asked if he had an attorney in mind and defendant pulled a yellow piece of paper from his pocket which apparently bore attorney Bert Twibell's name, for defendant asked Whitlow for Twibell's telephone number. When it was provided the officers left the room and as they were leaving, defendant was dialing. The officers returned about 15 minutes later and defendant told them Twibell had indicated it would be permissible for defendant to give a statement, but that defendant should "tell the truth". 4

Defendant was then taken to the courthouse by the officers, at approximately 9:30 a. m., for appearance before the Associate Circuit Judge who informed defendant of the capital murder, burglary and armed criminal action charges against him, and inquired whether defendant wanted an attorney appointed or would hire private counsel. Captain Whitlow, who was standing next to defendant, leaned over and whispered something to defendant. Judge Davidson was unable to hear the remark, but Detective Lowe, who was standing behind the two, testified Whitlow asked defendant, who was swaying and appearing ill, if he wanted to sit down, to which defendant nodded yes and took a seat. It was then indicated to the Court, either by Captain Whitlow, accompanied by defendant's affirmative nod, or defendant himself, that defendant would investigate hiring counsel. Defendant did not tell Judge Davidson that he needed an attorney. The Court finally instructed defendant to advise the court by a "certain date" the name of the attorney he had selected. 5 Defendant was returned to the Sheriff's Department and there gave his statement.

At approximately 10:00 a. m. on July 9, 1979, at the Greene County Sheriff's Department, defendant was advised again of his rights and shown a "rights form", which he assisted the officers in completing. Captain Whitlow again read a rights waiver to defendant, and defendant then read the form aloud. Defendant stated that he understood his rights, signed the waiver and gave a statement, witnessed by Captain Whitlow, Detectives Jack McMullin and Danny Lowe, and Cathy Henry, a stenographer who transcribed the statement. In the statement, defendant further acknowledged that he was charged with murder, that he knew and waived his rights, and that his statement was completely voluntary. At conclusion of the statement, defendant suggested visiting the scene of the crime, feeling it would help revive his memory.

Accordingly, Whitlow contacted the prosecuting attorney and arranged for a camera crew to accompany them on July 10, 1979. Before and after arriving at the scene for the videotaping, defendant was again given the Miranda warnings, which were read aloud to him and which he read to himself. Additionally, a second form advised defendant of his rights respecting visiting the scene and videotaping the reenactment. Defendant stated he understood all of these rights and again made his waiver. Defendant's videotaped reenactment of the events of July 6, 1979, was the same, in substance, as the acts described in the written statement taken the previous day. The videotape also depicts defendant being advised, then waiving his constitutional protections. 6

The officers testified no promises or threats were made to defendant prior to either statement, defendant was never told he would...

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