State v. Brown, 13158

• Decision Date: 03 February 1984
• Docket Number: No. 13158,13158
• Citation: 665 S.W.2d 945
• Parties: STATE of Missouri, Respondent, v. Mark Anthony BROWN, Appellant.
• Court: Missouri Court of Appeals

Page 945

665 S.W.2d 945

STATE of Missouri, Respondent, v. Mark Anthony BROWN, Appellant.

No. 13158.

Missouri Court of Appeals,

Southern District,

Division Three.

Feb. 3, 1984.

Motion for Rehearing and to

Transfer Denied Feb. 24, 1984.

Jimmie D. Stokley, Asst. Public Defender, Kennett, for appellant.

John Ashcroft, Atty. Gen., Sandra K. Stratton, Bruce Farmer, Asst. Attys. Gen., Jefferson City, for respondent.

CROW, Presiding Judge.

Appellant, charged in Count I with the capital murder of Janet Sue Johnson, a 27-year-old female, and in Count II with the capital murder of Janet's 7-year-old daughter, Sabrina Leigh Johnson, waived trial by jury, Rule 27.01(b), ¹ and, upon trial by the court, was found guilty of murder in the second degree, § 565.004, RSMo 1978, under Count I, and guilty of capital murder, § 565.001, RSMo 1978, under Count II. The court sentenced appellant to imprisonment for life under Count I, § 565.008.2, RSMo 1978, and to imprisonment for life without eligibility for probation or parole until he had served a minimum of 50 years of his sentence under Count II, § 565.008.1, RSMo 1978. The sentences were ordered to run concurrently.

Appellant says the court erred in (1) receiving in evidence appellant's oral and written confessions and "real evidence," because the investigating officers failed to comply with Miranda v. Arizona, ² (2) receiving in evidence statements made by appellant and "physical evidence" obtained from him, because he was not promptly brought before a judge as required by Rule 22.07(a), and (3) failing to find him not guilty by reason of mental disease or defect excluding responsibility.

In determining the sufficiency of the evidence to support the trial court's findings on the issue of guilt or innocence, we accept as true all evidence tending to prove appellant's guilt, together with inferences favorable to the State that can be reasonably drawn therefrom, and we disregard all contrary evidence and inferences. State v. Giffin, 640 S.W.2d 128, 130 (Mo.1982). If there is substantial evidence to support the trial court's findings, its judgment is to be affirmed. Id. at 130.

The evidence on the issue of guilt or innocence is intertwined with the evidence pertaining to the admissibility of the items about which appellant complains. Appellant filed a pretrial motion to suppress those items, and the trial court held an evidentiary hearing and made findings of fact. Our review of the trial court's ruling on the motion to suppress is limited to a determination of whether the evidence is sufficient to sustain its findings. State v. Baskerville, 616 S.W.2d 839, 843 (Mo.1981). In making our determination, we are mindful that the weight of the evidence and credibility of witnesses are questions for the trial court's resolution. State v. Boggs, 634 S.W.2d 447, 453 (Mo. banc 1982).

Viewed in accordance with Griffin, Baskerville and Boggs, the evidence supports the following findings.

On Monday, June 1, 1981, the Malden Police Department received a report of a fire (evidently unrelated to this case) behind an equipment company along the Cotton Belt Railroad tracks. Captain William R. Earnheart went to that location about 6:35 p.m., and saw appellant sitting on the tracks.

The two approached each other and Earnheart saw appellant "had some blood on him, and cuts." Earnheart asked what appellant's problem was, and appellant explained he had "some girl friend trouble" and needed to be alone and think. Earnheart asked appellant if he would like to go to the police station for first aid, but appellant declined.

Earnheart radioed the dispatcher, instructing him to notify the Railroad of appellant's presence on the tracks, and to ask whether the Railroad wanted appellant removed.

Earnheart, suspecting appellant "was attempting suicide, just waiting for a train," told a nearby officer to keep an eye on appellant. Earnheart's suspicion was based on appellant's refusal of medical attention and Earnheart's impression from appellant's actions that "something was very wrong."

Earnheart then departed, going to the restaurant where appellant was employed. There, Earnheart learned appellant had been scheduled for work the night before, but had failed to report. The restaurant manager gave Earnheart the address of the apartment where appellant lived, and Earnheart went there, finding it locked. He "hammered on the door, trying to rouse somebody," but got no answer.

Meanwhile, the dispatcher had notified the Railroad that appellant was on the tracks, and the Railroad had requested that appellant be removed. The dispatcher advised Earnheart of this by radio. Earnheart, believing appellant was outside the Malden city limits, instructed the dispatcher to request a deputy sheriff to remove appellant.

The dispatcher radioed Dunklin County Deputy Sheriff Vernon George Earnheart (Captain Earnheart's brother), and advised Deputy Earnheart of Captain Earnheart's request.

Deputy Earnheart, who knew appellant, went to the scene and observed appellant sitting on the tracks. Deputy Earnheart saw appellant was cut on the wrist and cheek. Appellant explained to Deputy Earnheart that he and his girl friend had a fight, and he had tried to kill himself.

Deputy Earnheart asked appellant to go to the city hall for medical attention, and appellant agreed. En route, Deputy Earnheart, observing that appellant was "disturbed," told appellant that if there was anything he (Earnheart) could do to help, he would be glad to try. Deputy Earnheart also told appellant that if he wanted to talk, he (Earnheart) would be glad to listen. At some point, appellant told Deputy Earnheart he had cut himself with a knife.

A medical technician was summoned to city hall, and the technician dressed appellant's wounds in a room adjoining the dispatcher's office. The technician, observing that appellant "seemed to be worried," asked appellant how he had received the wounds. Appellant explained he had fallen through a plate glass table. The technician replied that the wounds could not have been obtained that way.

Deputy Earnheart then told appellant that he (Earnheart) had to leave. At that point, appellant asked to speak to Earnheart alone. The technician departed, advising appellant and Earnheart that appellant's arm wounds needed stitching by a doctor.

Deputy Earnheart "cleared the room," and suggested to appellant that they move farther from the dispatcher's office. Appellant walked across the room, seated himself, began crying, and said, "I killed her."

Deputy Earnheart said, "Who?"

Appellant said, "Janet," adding, "I loved her, but I killed her and put her in the closet."

According to Deputy Earnheart, he "couldn't believe it." Earnheart's first thought was that if appellant had done what he said, perhaps Janet was not dead, but only hurt. Earnheart asked appellant if he (Earnheart) "could go see."

Appellant took the apartment key from his pocket, handing it to Earnheart. Earnheart told the dispatcher and other officers what appellant had said, cautioning them to say nothing to appellant and not to let appellant go anywhere until he (Earnheart) returned.

Deputy Earnheart, Captain Earnheart and other officers then went to the apartment, entered, and found Janet dead in a closet and Sabrina dead in the front room.

The Earnhearts returned to city hall and Captain Earnheart arrested appellant at 8:12 p.m. Captain Earnheart advised appellant of his rights as required by Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and asked appellant if he understood them. Appellant answered, "Yes." Captain Earnheart then asked appellant if he wished to talk, and appellant again answered, "Yes."

Appellant then wrote a brief statement in his own hand admitting that on May 31 he killed Janet with an ax and strangled Sabrina at the apartment. This statement was witnessed by Captain Earnheart and the dispatcher at 8:28 p.m.

Meanwhile, Malden Police Chief Bob McDonald, having been radioed by the dispatcher, had gone to the apartment at 8:15 p.m. Thereafter, Corporal Jerry Crismon of the Missouri Highway Patrol, who had been contacted by phone, went to the apartment to "process" it. The sheriff and the coroner of Dunklin County were there when Crismon arrived. Crismon entered the apartment, made photographs, and collected "items of evidence."

At 8:50 p.m., Chief McDonald, who had returned to city hall, advised appellant of his rights per Miranda and asked whether appellant understood them and whether appellant wished to talk, receiving affirmative replies to both questions. McDonald, Deputy Earnheart and Captain Earnheart then questioned appellant, the conversation being recorded on tape.

Appellant (born September 5, 1962) explained that he began living with Janet and Sabrina in October, 1977. He described his relationship with Janet as a "common law marriage." Appellant related that on Sunday, May 31, while Janet was doing exercises on the apartment floor, he "just went crazy" and hit her in the back of the head with an ax he had borrowed earlier that day. She ran toward a door and he struck her in the head with the ax a second time. She fell and he put her in a bedroom closet.

Appellant added that Sabrina was gone when this occurred. When Sabrina returned, appellant told Sabrina that Janet was gone with friends, then put his hands around Sabrina's neck and strangled her.

Appellant revealed that after strangling Sabrina, he "sexually assaulted her" in the vagina. Appellant recounted that he thereafter took a razor and cut his arm and knee "to try to get myself to bleed to death." He remained in the apartment during the night of May 31 and the following day, "recutting" his wounds several times. He left the apartment between 5:00 and 6:00 p.m., June 1.

The taped interview during which these disclosures were made was of 10-minutes' duration. After that interview, appellant was taken to a hospital for further treatment of his...